Patent Complaint Satisfying Form 18 (Reluctantly) Allowed

Although denying a motion to dismiss a complaint of direct patent infringement, a Massachusetts District Court has pointedly stated that "[i]t is difficult to reconcile the simplistic approach for asserting a patent infringement claim contemplated by Rule 84 and Form 18 [of the Federal Rules of Civil Procedure] with the pleading standards announced in [Ashcroft v. Iqbal, 556 U.S. 662, (2009)] and [Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007)]." Select Retrieval, LLC v. Bulbs.Com Inc., No. 12-10389-TSH (D. Mass. Dec. 4, 2012). However, the Court did grant, albeit with leave to amend, the defendant's motion to dismiss claims of indirect and willful infringement. While this case is cumulative of other patent infringement notice pleading cases discussed in this blog, it is worth noting for the Court's clear, and, I think, widely shared, frustration with the patent infringement pleading standard presently mandated by the Federal Circuit.

The Court summarized the plaintiff's Complaint as alleging that the defendant

is the assignee and owner of the United States Patent No. 6,128,617 ("’617 Patent") entitled "DATA DISPLAY SOFTWARE WITH ACTIONS AND LINKS INTEGRATED WITH INFORMATION." Without license or authorization, Bulbs.com has directly and indirectly infringed and continues to directly and indirectly infringe one or more claims of the ’617 Patent by making, using, owning, operating, and/or maintaining one or more websites, including but not limited to, www.bulbs.com, that embody the inventions claims in the ’617 Patent.

After citing Iqbal and Twombley, the Court reviewed Federal Circuit precedent endorsing a patent plaintiff's adherence to Form 18, including McZeal v. Sprint Nextel Corp., 501 F.3d. 1354 (Fed.Cir. 2007) and In re Bill of Lading Transmission And Processing Sys. Patent Litig., 681 F.3d 1323 (Fed.Cir. 2012).

The plaintiff's direct infringement claim satisfied Form 18; the plaintiff was not required to name a specific product or "any more information than that contained in the sample forms, which are admittedly vague."

Claims of indirect patent infringement, in contrast, were required to satisfy Iqbal and Twombley. Here, the plaintiff simply alleged "upon information and belief" that the defendant contributorily and by inducement infringed the patent-in-suit. These allegations, as "legal conclusions with little or no factual support," fell "woefully short of establishing a plausible claim for contributory infringement or infringement by inducement." Therefore, the plaintiff's claims of indirect infringement were dismissed, with leave to amend.

Anticipating an amended complaint, the Court specifically addressed, and rejected, the plaintiff's argument that its prior lawsuit provided notice sufficient to satisfy the intent element of an induced infringement claim. The Court explained that, generally, "relying on the filing of a suit to show that a defendant had knowledge of the existing patent is not sufficient for pleading an inducement claim."

Finally, the Court stated that, regardless of whether a pleading must rise to the "objective recklessness" standard of In re Seagate Tech., LLC, 497 F.3d 1360 (Fed.Cir. 2007), here, the plaintiff's "barebone, conclusory allegations fail to state a plausible claim for willful infringement."