Amended Rules, Amended Pleadings: How the Abrogation of Form 18 Politicized Direct Infringement Patent Pleading

Nick Baniel · 21 Vand. J. Ent. & Tech. 737

Abstract

Since the abrogation of Form 18, the template for pleading direct infringement of patents, district courts have struggled to assess exactly what a plaintiff must assert in pleadings to survive a motion to dismiss for failure to state a claim. In place of Federal Rule of Civil Procedure 84, courts have developed multiple standards to assess pleading sufficiency. The US Court of Appeals for the Federal Circuit has provided little guidance when given the opportunity to resolve this division, leaving uncertainty for litigants and judges.

Using data collected from opinions on motions to dismiss during 2016 and 2017, this Note identifies a significant amount of granted motions in the period immediately following abrogation. Further, the data suggests that judges appointed by Republican presidents have used stricter pleading standards, and are more likely to grant a motion to dismiss, than judges appointed by Democratic presidents. As a result, this Note argues for a uniform pleading standard that restricts the ability to politicize infringement pleadings, works to provide consistency and predictability for litigants, and complies with the Supreme Court’s teachings in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.