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The U.S. Supreme Court recently approved the elimination of Rule 84 of the federal Rules of Civil Procedure, effective Dec. 1, 2015. This will raise the pleading standard for patent infringement complaints and bring them under the same Twiqbal standard that applies to all other federal cases. The Twiqbal standard—a combination of the Supreme Court’s landmark Twombly and Iqbal decisions—requires a complaint to allege enough facts to state a claim to relief that is “plausible” on its face.   

Rule 84 now states that using one of the “form” complaints found in the Appendix to the Federal Rules will “suffice” to properly plead a claim. The Appendix’s Form 18 is a barebones patent infringement complaint that contains little more than a patent number and a general description of the accused product (an “electric motor” in Form 18). Form 18 has caused controversy because it has exempted patent owners from the Twiqbal standard, allowing them to get past the pleading stage with a patent number and barebones infringement allegation. Some have complained that this lower standard has allowed plaintiffs with weak infringement cases to obtain undeserved settlements from defendants facing high legal fees to prove they don’t infringe in litigation.

With the elimination of Rule 84, patent infringement complaints will now, for the first time, be subject to Twiqbal. Patent owners will undoubtedly have to give more detail in their complaints, and the courts will have to decide just what type of detail and how much to require. The courts will also have to decide whether to dismiss patent cases when it is “implausible” that a product infringes a patent based on the court’s reading of the patent and review of the accused product. If courts decide to do so, it would cause a significant shift in favor of those sued for infringement. 

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