K-Tech: do forms rule?
Any criticism we may have regarding the sufficiency
of the forms themselves is strictly proscribed by Supreme
Court precedent. See Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168
(1993) (Any changes to the Federal Rules of Civil Procedure
“must be obtained by the process of amending the
Federal Rules, and not by judicial interpretation.”); see
also Twombly, 550 U.S. at 569 n.14 (acknowledging that
altering the Federal Rules of Civil Procedure cannot be
accomplished by judicial interpretation). And, as we
made clear in R+L Carriers, to the extent any conflict
exists between Twombly (and its progeny) and the Forms
regarding pleadings requirements, the Forms control.1
R+L Carriers, 681 F.3d at 1334 (citing McZeal, 501 F.3d
at 1360 (Dyk, J., concurring in part and dissenting in
part) (acknowledging that, while the bare allegations
contemplated by Form 18 appear deficient under
Twombly, we are “required to find that a bare allegation
of literal infringement in accordance with Form 
would be sufficient under Rule 8 to state a claim”));
Thus, a plaintiff in a patent infringement
suit is not required to specifically include
each element of the claims of the asserted patent.
See, e.g., Phonometrics, Inc. v. Hospitality Franchise
Sys., Inc., 203 F.3d 790, 794 (Fed. Cir. 2000).
K-Tech responds by arguing that both DirecTV and
TWC operate in secrecy and that K-Tech is unable to
ascertain exactly where the infringement is occurring or
what devices are used to infringe. K-Tech contends that
fair inferences can be drawn from allegations in the
complaints regarding the nature of defendants’ businesses,
the industry standards to which they are required to
adhere, and the output signals produced
A defendant cannot shield itself from a complaint
for direct infringement by operating in such secrecy that
the filing of a complaint itself is impossible. Nor is a
defendant immune from a direct infringement claim
because he does not make a “device” but, rather, infringes
through a system or method.
The touchstones of an appropriate analysis under
Form 18 are notice and facial plausibility. See R+L
Carriers, 681 F.3d at 1334; McZeal, 501 F.3d at 1357.
While these requirements serve as a bar against frivolous
pleading, it [LBE: bar, not requirements] is not an extraordinarily high one.
Note the concurring opinion:
stating that “the Forms control” in the event of a conflict
between Form 18 and plausibility is dictum. In re
McGrew, 120 F.3d 1236, 1238 (Fed. Cir. 1997) (“[D]ictum
consists, inter alia, of statements in judicial opinions upon
a point or points not necessary to the decision of the
case.”) Such dictum “‘is not authoritative,’” but rather “‘is
the part of an opinion that a later court . . . is free to
reject.’” Id. (quoting United States v. Crawley, 837 F.2d
291, 292 (7th Cir. 1988)).