From Pacer,
on the grounds that e.Digital’s Complaint fails to allege facts that state a plausible claim for relief. Accordingly, e.Digital’s Complaint should be dismissed for failing to name the proper defendant and failing to properly plead claims for direct infringement, induced infringement, and contributory infringement.
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A Double Standard For Pleading Patent Infringement
In its recent decision in Bill of Lading,1 a panel of the Federal Circuit clarified that the standard for pleading indirect infringement (i.e., inducement and contributory infringement) is different than the standard for pleading direct infringement. A pleading for a claim of direct infringement need not allege a specific claim of the patent that is infringed or how or why the accused products infringe, and in some cases may identify the accused products categorically, rather than specifically (e.g., by name or model number). In contrast, a pleading for a claim of indirect infringement must adhere to a more rigorous standard, and allege enough facts to plausibly support liability.2
Background
Under the notice pleading standard embodied in the Federal Rules of Civil Procedure (FRCP), a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”3 In recent years, however, the Supreme Court has explained that “showing” an entitlement to relief requires a complaint to allege enough factual matter to “raise a right to relief above the speculative level” such that the claim “is plausible on its face.”4 “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’”5 Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not survive a motion to dismiss.6
Yet the model pleading for patent infringement found in the Appendix of Forms attached to the FRCP, appears to contain little more than conclusory assertions.7 In particular, the form (Form 18) contains only four numbered paragraphs spanning just over a page. Regarding the defendant’s acts of infringement, Form 18 alleges simply that “[t]he defendant has infringed and is still infringing the Letters Patent by making, selling, and using electric motors that embody the patented invention, and the defendant will continue to do so unless enjoined by this court.”8 Nevertheless, the Bill of Lading court held that the allegations of Form 18 would withstand a motion to dismiss, at least as to claims for direct patent infringement.9 The court reasoned that Rule 84 expressly provides that the forms in the Appendix comply with the Rules, and thus, even if Form 18 might appear lacking under Supreme Court precedent, Rule 84 controls.10 On the other hand, the court found Form 18 irrelevant as to claims of indirect infringement because Form 18 alleges only a cause of action for direct infringement.11
Pleading Direct Infringement
Under Bill of Lading, a patentee alleging direct infringement may model its complaint after Form 18, which includes “(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the patent ‘by making, selling, and using [the device] embodying the patent’; (4) a statement that the plaintiff has given the defendant notice of its infringement; and (5) a demand for an injunction and damages.”12 The patentee does not have to “plead facts establishing that each element of an asserted claim is met.”13 In fact, a patentee does not even have to “identify which claims it asserts are being infringed.”14
Some uncertainty remains as to how specifically the patentee must identify the accused products. As discussed above, Form 18 does not identify specific products by model number or otherwise; rather, it refers only categorically to “electric motors.” Thus, if a patentee identifies particular products, that identification should be sufficient. If, however, a patentee chooses to identify products by a category, the question becomes how specific must the definition of the category be. After all, how specific is “electric motors?” On the one hand, it is more specific than merely “motors"; on the other hand, it is less specific than “alternating current (AC) electric motors.” Districts courts applying this test have reached different conclusions on similar facts. For example, one court found “computers” analogous to “electric motors,” and therefore sufficient,15 while another court rejected “the broad descriptor of ‘computer’” as insufficient.16 One court has even approved the use of claim language as a sufficient identification of a category of accused product.17 Ultimately, the outcome of an attempt to identify products categorically in connection with a pleading for direct patent infringement is likely to be fact-specific. Generally, however, many courts appear willing to find reasonably tailored categories to be sufficient under Form 18, especially where the category is accompanied by specific examples.
