Patent owners and businesses should be prepared for yet another change to patent infringement litigation. In April 2015, the U.S. Supreme Court adopted Congress’s amendments to the Federal Rules of Civil Procedure, which went into effect December 1. In addition to modifying rules on service and discovery, the amendments abolished Federal Rule 84, which adopted numerous form pleadings for federal litigants. The most notable for patent litigants was Form 18, which provided a form complaint for direct patent infringement that only required the plaintiff to allege the title of the patent, the patent number, and an allegation of infringement.

Under Federal Rule of Civil Procedure 8, a federal complaint must contain “a short and plain statement showing that the pleader is entitled to relief.” Supreme Court decisions in 2007 and 2009 interpreted this to require “sufficient factual matter,” which accepted as true would “state a claim that is plausible on its face.” Using these decisions, many defendants successfully moved to dismiss complaints that alleged legal conclusions rather than facts. Some challenged patent infringement claims under this “plausibility” standard; however, the Federal Circuit Court of Appeals found that standard to be inapplicable to claims of direct patent infringement. According to the Federal Circuit, a complaint alleging direct patent infringement was only required to conform to Form 18 because, under Rule 84, Form 18 was Congressional approval of that standard and any heightened standard would require a change to Form 18.

That change has now taken place and due to the abolishment of Form 18, district courts and litigants will have a difficult time determining what is required to plead direct infringement. Defendants are likely to argue “plausibility” requires much more than what was required by Form 18. Plaintiffs are sure to argue the opposite. Unfortunately, the Federal Circuit seems conflicted on this point. In a 2013 concurring opinion, Judge Wallach of the Federal Circuit found that “[Form 18] illustrates the ‘simplicity and brevity’ adequate to state a plausible claim for relief in cases alleging direct patent infringement.” However, in a 2007 concurring opinion, Judge Dyk of the Federal Circuit reasoned that a “plausible” claim of infringement would require that a plaintiff allege which claims of the patent are asserted to be infringed and by which features in the defendants products or services. The Advisory Committee on the Federal Rules seems to agree with the latter. In its recommendation to the Supreme Court to abolish Form 18, the Committee stated that the forms “illustrate a simplicity of pleading that has not been used in many years.” Litigants should expect district courts to handle the situation on a case-by-case basis, and judges will likely require more detail in a plaintiff’s factual allegations the more complicated the patent or patented technology.

Although the pleading standard for direct infringement is currently unknown, one thing is clear: litigants will disagree on what is sufficient to allege direct infringement. So, whatever the standard, plaintiffs claiming infringement are likely to face challenges at the pleading stage for any complaints filed on or after December 1, 2015. Plaintiffs should also be prepared to face challenges to actions filed before December 1. Case law provides that where amendments to the rules do not affect substantive rights, those amendments apply to pending actions as well as suits filed after the amendment. Courts may construe the abolishment of Form 18 to be a change to form and not substance. As a result, the modification to pleading direct patent infringement (if any) may apply to pending actions.