Federal Circuit Finds General Allegations of Infringement Sufficient under Iqbal/Twombly

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After having its complaint for patent infringement dismissed for failure to state a claim and being denied its request to file an amended complaint in the Middle District of Georgia, Disc Disease Solutions turned to the Federal Circuit for relief. Fortunately for Disc Disease, in Disc Disease Solutions v. VGH Solutions, the Federal Circuit took a different view of the sufficiency of allegations in the complaint under Iqbal/Twombly and reversed the lower court’s dismissal of Disc Disease’s complaint. While the precedential opinion from the Federal Circuit is far from a complete guide to drafting a well-pleaded complaint under all scenarios, the reasoning provided by the court in its opinion may help to further inform patent owners as to what a sufficiently pleaded complaint should contain to survive a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) for certain technologies.

The infringement allegations against VGH Solutions in Disc Disease’s complaint were brief, i.e., the products meet “each and every element of at least one claim of the ’113 [or ’509] Patent, either literally or equivalently.” There were no claim charts or references to a specific claim or inclusion of any specific element-by-element analysis in the complaint. It was on this basis that the district court found that the allegation in Disc Disease’s complaint did not satisfy the Iqbal/Twombly plausibility pleading standard and dismissed the complaint with prejudice.  Since the complaint was filed the day before the “heightened” Iqbal/Twombly pleading standard was implemented in the revised Federal Rules of Civil Procedure, Disc Disease asked the lower court to provide it an opportunity to amend the complaint first in a motion for reconsideration and subsequently in a motion to alter or amend the judgment. The lower court denied Disc Disease’s requests on the basis that, even though the abrogation of the “short form pleading standard” via Form 18 took effect one day after the complaint was filed, such a change in the rules did not constitute an intervening change in law. Despite the fact that the Federal Rules of Civil Procedure generously allow plaintiffs to file an amended complaint, the district court further concluded that its dismissal with prejudice without leave to amend did not create a manifest injustice sufficient to warrant reconsideration (noting that Disc Disease’s only request for leave to amend its complaint was in a footnote in the opposition to VGH Solution’s motion to dismiss).

On appeal, the Federal Circuit analyzed the infringement allegations in the complaint under the Iqbal/Twombly pleading standard and found them to be sufficient. In particular, the court noted that the infringement allegations were coupled with the specific identification of the accused products (by name and through photos attached as exhibits to the complaint). The court also noted that the low number of independent claims factored into its decision -- U.S. Patent No. 8,012,113 (“the ʼ113 patent”) includes three independent claims and U.S. Patent No. 7,618,509 (“the ʼ509 patent”) has a single independent claim. Ultimately, the court reasoned that through the disclosures and allegations in the complaint, VGH Solutions was provided fair notice of infringement of the asserted patents. 

As an aside, since it concluded that the infringement allegations were sufficiently pleaded under the Iqbal/Twombly pleading standard, the court found it unnecessary to address the question of whether the now abrogated Form 18 or the Iqbal/Twombly pleading standard applied based on the timing of the filing of the complaint. However, the court implied that there was no recognized difference between the requirements of either pleading standard.

Interestingly, the Federal Circuit further indicated that its decision was at least somewhat based on the fact that the technology at issue was “simple.” The patents alleged to be infringed by VGH Solutions are generally related to non-invasive medical devices. More specifically, the ʼ113 patent includes claims covering a spinal brace with an air injectable band having a rigid panel, and the ʼ509 patent features claims related to a method of making a wrinkled band without an air expansion tube. Claim 1 of the ʼ113 patent and the sole independent claim of the ʼ509 patent are provided below:

ʼ113 Patent

ʼ509 Patent

1.   A spinal brace comprising:

a flexible air injectable band configured to be disposed about a torso of a user and to provide traction to a spine of the user;

a support panel configured to provide support by compression to at least a region of said torso, said support panel being less flexible than said air injectable band; and

means of associating said support panel with said flexible air injectable band;

wherein the air injectable band is configured to expand in an axis generally parallel to the spine when inflated so as to apply a force at a rib area of the user via an upper edge and a force at a hip area via a lower edge to provide said traction comprising a decompression of vertebrae within the spinal column of the user; and

wherein said means of associating comprise two association openings formed through the support panel, one association opening disposed at each of substantially opposite ends of said support panel, the air injectable band extending through the association openings, wherein the association openings traverse across the support panel in a direction generally parallel to the spine and wherein said association openings have a dimension in said direction that is greater than a corresponding dimension of the flexible air injectable band.

 

1.   A method of manufacturing a wrinkled band, wherein the outer peripheral rim of an overlapped adhesion sheet is adhered and simultaneously an adhesion line having an air passage is formed with certain regularity in the inner side face thereof, another adhesion line forms a respective vent hole and secures an inner space in-between, and above and below the secured inner space a connection adhesion band 5 with an elastic band 6 connected thereto is adhered by an outer peripheral line, with the elastic band being stretched.

Whether or not you agree with the Federal Circuit that the technology at issue is simple, it seems that one takeaway from this decision is that there may be different thresholds for meeting the Iqbal/Twombly pleading standard depending on the level of complexity of the technology at issue in the case.

So what are the other key takeaways from this decision? First, according to the Federal Circuit, for a complaint to survive a motion to dismiss under 12(b)(6) and, more specifically, satisfy the Iqbal/Twombly pleading standard as it relates to patent infringement, a complaint need not include a claim chart. Second, it seems that reference to a specific claim or inclusion of any specific element-by-element analysis is not required. However, complaint drafters should view the second takeaway with a bit of a jaundiced eye, especially considering that (a) the Federal Circuit appears to have conditioned its decision on the “simple” technology at issue and (b) it is unclear what other types of technologies may be considered “simple” enough to require only an identification of the patents being asserted and the products being accused as with the Disc Disease complaint. Accordingly, including a reference to at least one specific claim and/or a specific element-by-element analysis is probably the safest course of action to avoid challenges under the Iqbal/Twombly pleading standard even for seemingly simple technologies.