K-Tech: do forms rule?

As to the use of forms, from the K-Tech decision of the CAFC:


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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 [18]

would be sufficient under Rule 8 to state a claim”));

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AND



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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).

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Note also

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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

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AND

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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.

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Note the concurring opinion:



Thus,

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)).