Does Pleading Patent Infringement Require a Claim Chart?

Pleading patent infringement does not require a claim chart, says a court considering the requirements for pleading both direct and indirect infringement under FRCP 8 and Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Crypto Research, LLC v. Assa Abloy, Inc., No. 16 Civ. 1718 (AMD) (RER) (E.D.N.Y. Feb 17, 2017).  The plaintiff alleged that the defendants infringed claims of three patents, U.S. Patent Nos. 8,086,866, 8,516,262, and 8,990,576. The defendants brought a motion to dismiss under FRCP 12(b)(6), alleging patent-ineligibility in addition to a failure to meet the requisite notice-pleadings standards for patent infringement.  The motion failed on all grounds (the defendants’ patent-ineligibility arguments are discussed in this post).

The court acknowledged that, following the demise of Form 18 of the Federal Rules of Civil Procedure, “most courts . . . have concluded that the Twombly pleading standard now applies to direct infringement claims.” The unsettled question, however, is “the extent to which a plaintiff must plead direct infringement element-by-element.”  This court declined to impose such a requirement, finding it “inconsistent with the admonition that the court, in considering a motion to dismiss, should draw all reasonable inferences in the light most favorable to the plaintiff.”

Here, the plaintiff’s complaint accused specific of the defendants’ products of infringing.  The complaint described the allegedly infringing functionality of these products.  Moreover, the complaint identified specific claims of the patents-in-suit that the defendants’ allegedly infringed.  Taken “[t]ogether, these allegations are sufficient to plead direct infringement.”

Further, the plaintiff sufficiently plead induced infringement by pleading that the defendants’ products directly infringed.  In this circumstance, “the mere sale of the allegedly infringing product is enough to plead the defendants’ intent to induce their end-users’ infringement.”  The court’s analysis concerning pleading contributory infringement was similar, with the addition that a fairly conclusory pleading that the infringing products had no substantial non-infringing uses was deemed sufficient.

Finally, the court gave cursory treatment to the question of willful infringement:

Willful infringement requires that the plaintiff plead that the defendants were “aware of the asserted patent but acted despite an objectively high likelihood that [their] actions constituted infringement of a valid patent.” [Citations omitted.] The complaint adequately alleges that the defendants committed acts of infringement with full knowledge of the plaintiff’s rights in its patents. That is sufficient.

Lessons for Practice

What a plaintiff needs to do to satisfy Rule 11, and what a plaintiff needs to do to adequately plead patent infringement, are two different things.  In many courts, presumably, Rule 11 has a higher bar; there is certainly evidence that the bar for pleading patent infringement has remained low even after the demise of Form 18.  There are arguments in favor of a requirement that a plaintiff alleging patent infringement attach a claim chart to its complaint.  But until such a requirement is implemented by statute or rule, many, but certainly not all, courts will decline to implement it.

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