Form 18 of the Federal Rules of Civil Procedure Rejected as an “Off-Ramp” to Twombly

Regeneron Pharm., Inc. v. Merus B.V.

Case Number: 1:14-cv-01650-KBF (Dkt. 71)

Merus B.V. moved for dismissal, arguing the Federal Circuit created an “off-ramp” for patent cases by holding in K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277 (Fed. Cir. 2013), that when the principles set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), conflict with Form 18 in the Appendix of Forms to the Federal Rules of Civil Procedure, Form 18 controls.  As an initial matter, Judge Forrest recognized that Second Circuit law is controlling on a motion brought under Rule 12(b)(6), rejecting the application of other precedent, and disagreed with other decisions in the Southern and Eastern Districts of New York pertaining to Form 18 that relied on other circuits’ law.

With this grounding, Judge Forrest reasoned that the Federal Circuit’s decision that Twombly is inapplicable in patent cases conflicts with Second Circuit precedent that applies Twombly’s principles at the pleading stage.  In fact, Judge Forrest reasoned that Form 18 is just one of many forms in the Appendix of Forms to the Federal Rules of Civil Procedure (e.g. negligence, third-party actions, etc.), and the Second Circuit has consistently required compliance with Twombly in many such cases.  Accordingly, Judge Forrest held that the sufficiency of a claim for patent infringement must be assessed pursuant to the basic elements of Form 18, but also with the guidance of Twombly.

Turning to the facts of the case, Judge Forrest noted that Form 18 requires only very little by way of pleading:  a statement of jurisdiction, the date the patent was issued, ownership rights in the patent, a general statement of infringement, and that a plaintiff has complied with the marking requirements and provided a defendant with notice of infringement.  But, she said, Twombly requires that the grounds of the claim must be sufficient to raise a right to relief beyond mere speculation, and the claim for relief must be plausible on its face.  Here, Plaintiff alleged that Defendant made a genetically modified mouse having a gene that allegedly infringed Plaintiff’s patent.  Defendant argued that this bare statement was insufficient notice of Plaintiff’s claim.  Judge Forrest agreed, in principle, that Plaintiff had alleged relatively little about its claim.  But nevertheless denying the motion to dismiss, Judge Forrest held that what was alleged was enough under Twombly, as the scope of the litigation, although narrow, was clear.

Topics:  Federal Rules of Civil Procedure, Pleading Standards, Pleadings, Twombly/Iqbal Pleading Standard

Published In: Civil Procedure Updates, Intellectual Property Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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