The Software IP Report

Patent Complaint Fails Form 18 Pleading Standard

By Charles Bieneman

Categories: Patent Civil Procedure, The Software IP Report

Two different district judges have dismissed the same patent plaintiff’s complaint (with leave to amend) where the complaint failed to identify accused products or link them to patent claims. PB&J Software, LLC v. BackupAgent B.V., No. 4:12CV691 CDP (E.D. Mo. Oct. 15, 2012).

The court first explained that, as the Federal Circuit set forth in In re Bill of Lading Transmission & Processing Sys. Patent Litig., No. 2010-1493 (Fed. Cir. June 7, 2012), patent complaints following Form 18 attached to the Federal Rules of Civil Procedure “cannot be successfully attacked.” Where there is “a conflict conflict between Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and the Forms, the Forms control.”

Here, the plaintiff had simply accused software and services described as performing something called “seed loading.” According to the plaintiff, “the patent-in-suit generally relates to computer software for backing up computer data with a ‘seed’ function, and it identifies the infringing software as BackupAgent software that incorporates the ‘seed’ function.”

Although the plaintiff contended this was more detail than Form 18 required, the court noted that the plaintiff had not attached the patent to, or described it in, the complaint. Therefore, it was unclear how “seed loading” related to the patent, or how that phrase related to accused products, much less did the plaintiff identify the accused products. Thus, the complaint was “woefully deficient and does not, despite plaintiff’s argument to the contrary, meet the requirements of Form 18 because it does not even describe the patent, the infringing device, or the connection between the two.”

Further, the court held that the plaintiff’s cursory pleadings of contributory and induced infringement were insufficient. First, pleading indirect infringement requires an adequate pleading of direct infringement. Moreover, the plaintiff had failed to plead any facts relating to how the defendant allegedly adapted accused software for contributory infringement, or had the knowledge and intent for induced infringement.

Accordingly, the court granted the defendant’s motion to dismiss the complaint, but also granted leave to amend. And as the court noted, the parties’ papers here were copied from the papers in PB&J Software, LLC v. Acronis, Inc., 2012 U.S. Dist. LEXIS 136869, 2012 WL 4372523, (E.D. Mo. Sept. 25, 2012), and the court here reached a similar result as its sister court in the earlier case involving the same plaintiff and substantially the same complaint.