Some Fed. Circ. Guidance On Patent Pleading Standard


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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 Inc. v. VGH Solutions Inc. et al., 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-pled 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 pled complaint should contain to survive a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) for “simple” 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 pled 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, as it previously did in Lifetime Industries Inc. v. Trim-Lok Inc. last year, 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 noninvasive 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:

Graphic of Patent 113 and 509 Language

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 the Federal Circuit is of the opinion that there are 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 notable 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 plausibility 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. Rather, based on the opinion in Disc Disease, it looks as if all that is required to satisfy the plausibility standard of Iqbal/Twombly is notice of which patents the defendant is accused of infringing and which of the defendant’s products are accused. However, complaint drafters should view the second takeaway with a bit of a jaundiced eye, especially considering that the Federal Circuit appears to have conditioned its decision on the “simple” technology at issue.

Indeed, even with this newest precedential appellate guidance, it seems that we are left with more questions than answers. For example, other than the technology in the Disc Disease patents, what other types of technologies would be considered “simple” enough to require only an identification of the patents being asserted and the products being accused? What if a complaint did not include photos of the accused products, but simply included model numbers or brand names relating to the accused products? And, would it matter if there were more independent claims at play than in Disc Disease, but the technology at issue is still considered “simple?”

Given the apparent subjectivity built into the analysis as to whether a technology is “simple,” relying on the Disc Disease decision when drafting a complaint for even seemingly simple technologies is not without some risk. In fact, while this binding precedent from the Federal Circuit is certainly now available for use by a plaintiff when faced with an Iqbal/Twombly challenge, there seems to be numerous ways in which the defendant would be able to distinguish Disc Disease and still walk away with a dismissal from the district court.

As such, including a reference to at least one specific claim and/or a specific element-by-element analysis remains a recommended practice to avoid or survive challenges under the Iqbal/Twombly pleading standard even when the technology at issue is fairly straightforward. However, it is important to note that, even if a complaint is considered sufficient under Iqbal/Twombly, depending on the court, discovery may be limited to the claims specifically identified in the complaint. Thus, until more concrete guidance emerges, including factual allegations for each asserted claim and every accused product able to be identified based upon publicly available information known at the time of filing the complaint may be the most prudent course of action regardless of the complexity of the technology involved.

Republished with permission. This article first appeared in Law360 on May 4, 2018.