Three recent cases from various U.S. district courts illustrate the need for a higher court to clarify the pleading standard governing claims of patent infringement. As previous posts to this blog have noted, trial courts have suffered from some confusion concerning the level of detail concerning alleged infringement that must be provided in a complaint. Is notice pleading patent infringement enough? What level of detail is required? Is it enough to model Form 18 attached to the Federal Rules of Civil Procedure, or is something more required? District court decisions continue to lack consistency. However, even courts hewing to Form 18 seem to want to require more. Moreover, perhaps some consensus is emerging that a heightened pleading standard applies to allegations of indirect (i.e., contributory and by inducement) infringement.
On to the new cases:
In Selex Communications, Inc. v. Google, Inc., No. 1:09-CV-2927 (N.D. Ga. May 10, 2012), the plaintiff alleged that various Google products infringed U.S. Patent No. 6,308,070. Regarding Google Voice, the plaintiff “concede[d] that no single entity completes all steps of the infringed method,” but contended “that end users control and direct the infringing method.” The plaintiff nonetheless argued “that it need not plead facts showing joint infringement” in its complaint. The Court noted that the plaintiff had not pled that end-users (cell phone users) were contractually obligated to carry out the accused method, and therefore had “not alleged that cell phone users direct or control the allegedly infringing method.” The Google Voice claim was therefore dismissed.
Selex also addressed the standard for pleading direct infringement. Regarding Google’s Gingerbread mobile operating system, Google argued that Selex had failed to specifically identify features in Gingerbread that met elements of the patent claims. However, citing McZeal v. Spring Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007), and noting that the Northern District of Georgia local patent rules would subsequently require the plaintiff to provide a detailed infringement claims chart, the Court disagreed that this level of detail was required in the plaintiff’s complaint. Therefore, the Court declined to dismiss Selex’s claims regarding Gingerbread.
In contrast, the Court in Ingeniador, LLC v. Interwoven, No. 11-1840 (D. P.R. May 15, 2012), noted the tension between Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and the purportedly liberal notice pleading standard of the Federal Rules of Civil Procedure. After a detailed review of Twombly, Iqbal, and the precedent leading to those two cases, as well as disparate lower court cases addressing patent infringement pleading requirements, the Ingeniador Court held that “Twombly and Iqbal clearly require more than notice pleading for direct infringement patent claims.” The Court based its conclusion in part on a recognition that a higher standard was required for pleading indirect infringement; the Court thought that dual standards for direct and indirect infringement did not make sense. Thus, the Ingeniador Court specifically rejected Form 18 of the Federal Rules of Civil Procedure, and in fact stated that the forms accompanying the Federal Rules of Civil Procedure “inaccurately describe the pleading standards for civil complaints” and “should be updated to include the specificity required by Twombly and Iqbal.”
In Guzik Technical Enterprises, Inc., v. Western Digital Corp., No.: 11-CV-03786 (N.D. Cal. May 11, 2012), the defendants argued that the plaintiff’s allegations of indirect patent infringement did not meet the “plausibility” standard of Iqbal. In an earlier order, the Guzik Court, following McZeal, had “noted that, Iqbal’s guidance notwithstanding, deference to Congress’s mandate in Form 18 requires acceptance of the “bare level of detail for allegations of direct infringement suggested by” the form. However, Iqbal did not constrain the Court’s evaluation of allegations of indirect patent infringement. Noting that the plaintiff’s pleadings did not “establish the mental state required for an indirect infringement claim,” and that this sort of detail was exactly what was called for by Iqbal, the Court granted a motion to dismiss the indirect infringement claims.