Form 18, I Just Don't Know What I Want: How the Abrogation of Form 18 Has Changed Pleading Standards

• Author: Jeffrey T. Castellano - Nathan R. Hoeschen
• Position: Jeffrey T. Castellano is a partner at Shaw Keller LLP in Wilmington, Delaware, specializing in patent litigation. He may be reached at jcastellano@shawkeller.com. Nathan R. Hoeschen is an associate at the same firm specializing in patent litigation. He may be reached at nhoeschen@shawkeller.com.
• Pages: 25-28

Published in Landslide® magazine, Volume 10, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

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I JUST

DON’T

KNOW

WHAT

I WANT

HOW THE

ABROGATION

OF FORM 18

HAS CHANGED

PLEADING

STANDARDS

By Jeffrey T. Castellano

and Nathan R. Hoeschen

FORM 18,

On December1, 2015, a long-standing safe haven for plaintiffs in patent infringement cases was eliminated as part

of a partial overhaul of the Federal Rules of Civil Procedure (FRCP).1 The 2015 amendments eliminated Form 18,

an exemplary patent infringement complaint appended to the FRCP and adopted in 1938, which consisted solely of

four brief paragraphs of factual allegations and a demand.

Form 18 was exceedingly plaintiff-friendly and, some said, out of step with the stricter pleading requirements set out by the

Supreme Court in Twombly and Iqbal. But even after those landmark cases changed the meaning of “notice pleading” in fed-

eral court, Form 18 remained the touchstone for adequate pleading of direct infringement,2 and plaintiffs that modeled their

complaint after Form 18 could be reasonably condent that their complaint would survive a Rule 12(b)(6) motion.3

Whether it was due to the rise of nonpracticing entity (NPE) litigation, the heightened pleading standard of Twombly and

Iqbal, or simply that the purpose of the FRCP forms “ha[d] been fullled” (as the rules committee stated4), Form 18 was elimi-

nated.5 It was then up to the courts to decide how Twombly and Iqbal would be applied in the patent infringement context. Now,

more than a year later, federal courts have laid the groundwork for the treatment of infringement complaints in a post–Form 18

world. While much uncertainty remains, it is clear that the days of pure notice pleading for patent infringement cases are gone.