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The Intellectual Property StrategistKickerSectionsNewsLJN Newsletters

Refining the Pleading Requirements for Patent Infringement

By Brad Riel

In a much anticipated decision, the Court of Appeals for the Federal Circuit (“CAFC”) in In Re Bill of Lading Transmission and Processing System Patent Litigation, No. 2010-1493, – 1494, -1495, -1496, 2011-1101, – 1102 (Fed. Cir. June 7, 2012) (O'Malley J.) has clarified the pleading requirements for alleging patent infringement. The court held that Form 18 of the Federal Rules of Civil Procedure (“FRCP”) governs the required specificity when pleading direct infringement. Thus, a plaintiff need not plead facts establishing that each element of an asserted claim is met, need not identify which claims it asserts are being infringed, and need not identify a specific direct infringer if it pleads facts sufficient to allow an inference that at least one direct infringer exists.

In contrast, Supreme Court decisions such as Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) ' not Form 18 ' rule when pleading indirect infringement. To state a claim for contributory infringement, a plaintiff must, among other things, plead facts that allow an inference that the components sold or offered for sale have no substantial non-infringing uses. Affirmatively pled facts that indicate substantial non-infringing uses may defeat a claim for contributory infringement.

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