The Software IP Report

Form 18 Trumps Iqbal and Twombley, Says Fed. Cir.

By Charles Bieneman

Categories: Patent Civil Procedure, The Software IP Report

Form 18 of the Federal Rules of Civil Procedure is the definitive authority concerning whether a plaintiff has adequately plead a claim of patent infringement. K-Tech Telecommunications, Inc. v. Time-Warner Cable, Inc., Nos. 2012-1425 and 2012-1446 (Fed. Cir. April 18, 2013). If Form 18 conflicts with Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), Form 18 controls. Thus, the Court reaffirmed its decision in R+L Carriers, Inc. v. DriverTech LLC (In re Bill of Lading Transmission & Processing System Patent Litigation), 681 F.3d 1323 (Fed. Cir. 2012), which came down a few weeks after the appeal in the present case was filed.

The plaintiff had sued several parties for allegedly infringing four patents generally directed to “modifying a major channel number, a minor channel number, and/or a carrier frequency to identify a television program.” The district court first granted the defendants’ motion to dismiss and allowed the plaintiff to amend its complaint, and then granted a dismissal altogether after, in the district court’s view, the plaintiff had still failed to meet the requirements of Iqbal and Twombley.

The complaints at issue alleged that the defendants “infringe the K-Tech patents by ‘making, selling, and offering to sell, in this judicial district, systems and methods for modifying a major channel number, a minor channel number, and/or a carrier frequency to identify a television program . . . .'” The plaintiff further alleged that because the defendants “identify programs broadcast over their cable or satellite systems with a channel number,” and did so in a manner mandated by the Federal Communications Commission, they must infringe the asserted patents.

A motion to dismiss presented a procedural question reviewed under the law of the regional circuit, here the Ninth Circuit. Thus, the Court began by citing Ninth Circuit precedent regarding Rule 12(b)(6) and motions to dismiss. However, the Court quickly turned to Form 18. Citing In re Bill of Lading, the Court stated that “Rule 84, combined with guidance from the Advisory Committee Notes to the 1946 amendment of Rule 84, makes clear that a proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading.” Further, the Court thought that Supreme Court precedent “strictly proscribed” criticizing “the sufficiency of the forms.”

The Court also cited In re Bill of Lading for the proposition that “to the extent any conflict exists between Twombly (and its progeny) and the Forms regarding pleadings requirements, the Forms control.” Further, “Form 18 is a national form.” In re Bill of Lading, while decided under Sixth Circuit law, “was dictated by Supreme Court precedent” concerning “the requirements of Form 18 and its relationship to the pleading standards set forth in Twombly and Iqbal.

However, a complaint that satisfied Form 18 could also satisfy Twombley and Iqbal. Further, “Form 18 in no way relaxes the clear principle of Rule 8, that a potential infringer be placed on notice of what activity or device is being accused of infringement.”

Here, Form 18 was satisfied. The plaintiff’s complaint described a regulatory scheme that implicated infringement, and further made allegations about how each defendants broadcasts worked in a manner to allegedly meet the patent claims. Form 18 does not “require that a plaintiff identify an accused device by name.” Instead, Form 18 sets a low bar against “frivolous pleading,” and required only “notice and facial plausibility.”

Judge Wallach concurred in the result, but “disagree[d] with the dictum that ‘the Forms control’ over the Supreme Court’s plausibility standard set forth in Iqbal and Twombly.” According to Judge Wallach, there was no conflict between Form 18 and Iqbal and Twombley. The question, under those cases, was whether the plaintiff’s “allegations are adequate under Rule 8(a). If so, they survive a Rule 12(b)(6) motion; if not, the complaints must be dismissed.”