Form Reform Moves Forward

Way back in 2012, we highlighted the problems caused by Form 18 of the Federal Rules of Civil Procedure, which provides a sample complaint for use in filing a patent infringement case. The main problem? The bare–bones form requires a patent–asserter to provide virtually no information about its claims to the defendant. And, under Federal Rule of Civil Procedure 84, any complaint that complies with Form 18 states a good–enough claim to go forward.

Just as the Supreme Court was imposing stricter requirements on what must be pled in a complaint in landmark opinions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Federal Circuit found itself forced to create different pleading rules for different infringement theories: Form 18 was good enough for direct infringement claims; indirect infringement claims, however, had to satisfy the Supreme Court’s tougher standard. Not a good state of affairs, as we detailed in an article for CONNtemplations, the online offshoot of the Connecticut Law Review.

While this may all sound like inside–baseball–lawyer–talk, Form 18’s laxity has real consequences for businesses trying to figure out what they’ve been accused of infringing. If “We have a patent; you have a website; please pay damages” states a valid claim, it is challenging (and expensive) to mount a defense.

So it is good news for lawyers and clients alike to learn that the Judicial Conference has just approved amendments to the Federal Rules that would eliminate Rule 84 and almost all of the forms associated with it, including Form 18. Those amendments now move to the Supreme Court with the recommendation that they be adopted. Assuming that the Supreme court does so—and it usually does—Form 18 will meet its past–timely end on December 1, 2015—unless Congress intervenes to save it. Let’s just say that Congressional action seems unlikely.