The US Supreme Court approved the elimination of a part of the Federal Rules of Civil Procedure that allowed plaintiffs in patent cases to file “bare-bones” complaints.

In September, a panel of judges approved the elimination of a federal rule providing model forms to be used in civil litigation. One of these forms, Form 18, was for use by plaintiffs in patent infringement cases.

Form 18 requires plaintiffs in patent cases to specify little more than the name and number of the patent allegedly infringed by the defendant(s).

The elimination of the forms, including Form 18, was required to be reviewed and approved by the Supreme Court.

The change will take effect on December 1, unless Congress passes legislation to block, change, or delay the change. Enhanced pleading standards are also a feature of several patent reform bills that have been introduced in recent years.

Surviving a Motion to Dismiss

In a 2012 case (Bill of Lading Transmission and Processing System Patent Litigation), the Federal Circuit ruled that a Form 18 patent complaint was sufficient to survive a motion to dismiss.

The recent Supreme Court cases Twombly and Iqbal raised the standards for pleading in patent infringement cases. Plaintiffs now need to do more than simply put defendants on notice of their claims. Now they need state at least some facts that their patent infringement claims are plausible.

However, in the Bill of Lading case, the Federal Circuit found that

to the extent the parties argue that Twombly and its progeny conflict with the forms and create differing pleadings requirements, the forms control…. In essence, the appellees argue that the amended complaints are deficient because they do not describe precisely how each element of the asserted claims are practiced by their customers. When compared to the requirements of Form 18, this argument is premised on a pleading standard that is too stringent.

Changing Pleading Standards

Despite the Bill of Lading decision, the judge in the 2014 Virginia district court case Macronix v. Spansion granted the defendant’s motion to dismiss a patent infringement complaint even though it complied with Form 18, finding that the Federal Circuit had not properly accounted for Twombly and Iqbal.


  • Plaintiffs in patent cases will soon no longer be able to filed “bare-bones” Form 18 complaints but will need to provide more details about the alleged infringement.
  • Defendants in patent cases will gain a better understanding of patent infringement allegations at an earlier stage in allegation, and as a result may be able to have infringement cases dismissed earlier.

About Us

The firm’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.

Please also visit us online for more information about our services.

Photo Attribution: “PSM V44 D639 Showing Leg Bones” by Unknown – Popular Science Monthly Volume 44. Licensed under Public Domain via Wikimedia Commons.

[xyz-ihs snippet=”eyeonip-disclaimer”]