Patent Pleading Standards After Iqbal:Applying Infringement Contentions as a Guide

摘要

This article examines how the new standard for pleading claims related to patent infringement should be interpreted in light of the Supreme Court's decisions in Twombly and Iqbal. The facial plausibility of a pleading requires more than bare allegations and must be supported with enough facts for the court to infer wrongdoing by the accused infringer. This article focuses on the application of this new pleading requirement to patent infringement cases.rnFederal Rule of Civil Procedure 8 is the starting point in understanding pleading standards in the federal courts. Additionally, the article discusses the relationship between Rule 8 and Rule 11, specifically in the context of patent pleading. Form 18, which outlines a basic infringement claim, may be used for literal infringement according to Federal Rule 84. Judge Dyk's dissent in the Federal Circuit's McZeal decision, however, raises many questions about the sufficiency of Form 18 that are pertinent following Iqbal. This article also addresses what is required for pleading other patent claims, such as the doctrine of equivalents and contributory infringement.rnSome argue that infringement contentions should now be used as a model for pleading patent-related claims. Each element of a cause of action should be presented with enough factual matter to allow the court to infer wrongdoing by the accused infringer. While a greater burden is placed on the plaintiff to develop and reveal these facts early in the case, this requirement also allows the plaintiff to influence the court through favorable claim interpretations, claim charts, and claim contentions before the accused infringer has a chance to develop contrary facts.rnThis article presents a framework for pleading patent-related claims based on case law and local patent rules. Because the Supreme Court's Iqbal decision and the Federal Circuit's McZeal decision seem to raise more questions than they answer, the article proposes a methodical approach to patent pleading that harmonizes the courts' opinions. The pleading requirements are interpreted in order to create a roadmap that can be used by both academics and practitioners alike.