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Form 18 Wins Again

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One thing we love about patent litigation is its ever-evolving nature — change keeps things interesting. An outside observer would probably expect, after decades of heavy patent litigation, that what was necessary to state a claim in a patent infringement complaint would be a settled issue. Yet, even this starting-gate issue continues to evolve. In K-Tech Telecommunications v. Time Warner, the Federal Circuit took another swipe at the Supreme Court decisions of Twombly and Iqbal in the context of patent infringement allegations. Here, in a decision that builds on the Federal Circuit’s 2012 decision In re Bill of Lading, the Federal Circuit held that a patent complaint satisfies Rule 8either by conforming to Form 18 or by conforming to the requirements of Twombly. Form 18 is, at best, bare bones. So, at least with respect to allegations of direct patent infringement, we can probably expect very little notice to be provided in future complaints. It is worth noting, however, that Form 18 does not include an exemplary indirect infringement allegation. Accordingly, under In re Bill of Lading, indirect infringement allegations still must satisfy the more stringent requirements of Twombly.

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