If Your Complaint is Twombly’d, then It’ll Be Cooter’d, and Never Be Markman’d.

Every year you get a new copy of the Federal Rules of Civil Procedure, and each one contains a “Form 16 Complaint for Infringement of Patent.”  After the CivPro teachings that Justice Souter just discoursed about in Bell Atlantic v. Twombly, it might be time to bulk up Form 16.

Only antitrust dweebs have a present realization that the rule in Twombly’s case may forever change the long-standing appellate axiom that about anything that resembles civil allegations tend to meet the ‘good enough for gov’t work’ standard of review.  [Now you know how this dweeb knows].  The short headnote in Twombly is that mere allegations of ‘conscious paralellism’ are insufficient to plead an antitrust “contract, combination or conspiracy.”

The longer topic is the appropriate measure of allegations that will overcome a Rule 12(b)(6) motion to dismiss for failure to state a claim.  Justice Souter declaims that “no heightened pleading” rule is being stated, then he goes on instructing about what additionally needs to be pleaded.  It is insufficient to plead a “possibility” without allegations adequate to suggest “plausibility.”  [Maybe the form allegation should begin, “Trust me, defendants have …”].

Others, more erudite than I, can explain and expound how Twombly announces a new regime for initial pleadings.  My thought was: does the case subsume Rule 11.  In order to plead enough facts for a plausible claim of patent infringement, or non-infringement, a pleader necessarily will have conducted a pre-filing investigation. 

To master what Twombly failed to do, a patentee would not merely plead “patent # was duly granted” and “upon information and belief, defendant has infringed said patent.”  How would barebones, Form 16, allegations suggest a “plausible” claim for infringement?  To quote The Honorable Justice “we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” 

If a complaint has “not nudged” far enough, then does it fail a Rule 11 test; will the ‘nudge’ or the Rule 11 test expose what the pleader had hoped to have the opportunity to discovery and prove.  The case may improve pleading standard, but it is likely to spawn many Rule 11 “safe-harbor” letter as new suits are filed.