An Infamous Illustration of Patent Infringement Pleading: Form 18 and Context-Specificity

Abstract

In evaluating the sufficiency of complaints for patent infringement, courts and litigants have struggled with the apparent conflict between the barebones requirements of Form 18 in the Federal Rules of Civil Procedure and the Supreme Court’s plausibility pleading standard. The Court of Appeals for the Federal Circuit initially held that, with respect to direct infringement, the Forms control, and district courts have since referred to Form 18 as creating an exception to the more stringent plausibility standard. Such an exception is diametrically opposed to the original purpose of the Forms, and contradicts Supreme Court precedent on the Federal Rules. In more recent cases, the Federal Circuit signaled a turn away from the exception view, towards a more context-specific approach. Meanwhile, the Advisory Committee on Civil Rules has been debating an update to Form 18, or returning the Forms to their original status as mere illustrations. This Article argues that, in light of Supreme Court precedent and the history of the Federal Rules, Form 18 must be viewed as a context-specific illustration of the general pleading standard, rather than an exception to that standard.