A recent Federal Circuit decision, Bot M8 LLC v. Sony Corp. of America (Fed. Cir. 2021) clarified the standard needed to plead claims of patent infringement. Its ruling also stands as a warning that too much detail can lead to the conclusion that there is no infringement as a matter of law, and thus preclude suit altogether.
The Bot M8 decision holds that while a plaintiff need not plead an element-by-element case of infringement, it must do more than recite the patent and identify the accused device. Rather, it must plead a “plausible” case of infringement (the general pleading standard in federal court), which may vary by the complexity of the case.
As to one of Bot M8’s patents, the plaintiff pleaded so much detail, that review of the pleadings indicated that they were inconsistent with a charge of infringement. So the Federal Circuit affirmed dismissal of that patent. But as to two other Bot M8’s patents, the Federal Circuit found that the district court had insisted on too much detail, and reversed the dismissal.
The Bot M8 Case
Bot M8 filed suit against Sony and others in the Southern District of New York, asserting six patents relating to gaming machines and casino, arcade, and video games. That case was transferred to the Northern District of California, where that court “directed” Bot M8 to file an amended complaint specifying “every element of every claim that you say is infringed and/or explain why it can’t be done,” and to purchase and reverse engineer the accused products, if possible. Bot M8 filed a 223-page first amended complaint, which Sony moved to dismiss.
The district court granted Sony’s motion to dismiss four of the asserted patents and denied Bot M8’s motion for leave to file a second amended complaint. (The district court also granted Sony’s summary judgment motion that one claim of a fifth patent was invalid under § 101, which the Federal Circuit affirmed).
On appeal, the Federal Circuit affirmed as to three patents, but reversed as to two. The pleading standards was central to its decision as to four of the patents.
Pleading Standard For Patent Infringement Cases
How much detail is required in a patent complaint has been controversial for some time. At one point, the federal rules contained a very terse model patent complaint, Form 18, which the Federal Circuit held controlled patent infringement pleading. But after that was eliminated from the rules, courts have struggled with how much details is required. Bot M8 has now brought some clarity.
The starting point is the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Inc. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court held that a plaintiff must give enough factual allegations to make out a “plausible” claim under the applicable law. That informs the pleading standard for patent infringement.
In the Bot M8 case, the Federal Circuit now further clarified the pleading requirements for patent infringement cases. It reiterated that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” But it disagreed with the district court’s instruction that a complaint must “explain . . . every element of every claim that you say is infringed and/or explain why it can’t be done.” The Court explained that under Iqbal/Twombly a plaintiff need not “prove its case at the pleadings stage” and is not required to plead infringement on an element-by-element basis.
Rather, the court explained that it is enough “that a complaint place the alleged infringer on notice of what activity . . . is being accused of infringement.” How much detail is required will depend on the case. Among the factors a court should consider are (1) the complexity of the technology, (2) the materiality of an element to practicing the asserted claims, and (3) the nature of the allegedly infringing device.
Bot M8’s Mixed Results
As to two of the asserted patents, the Federal Circuit held that the district court had insisted upon too much detail, and reversed the dismissal. The pleadings, though not as detailed as the district court had insisted, did provide enough detail to make out a plausible case for infringement.
As to another patent, however, the Amended Complaint merely made conclusory allegations that the accused device met all the claim elements, and the court affirmed the dismissal.
As to a fourth patent, the Federal Circuit reasoned that the Amended Complaint contained too much rather than too little, to the point that Bot M8 had essentially pleaded itself out of court. Bot M8 took a “kitchen sink” approach that revealed pleadings that were inconsistent with the asserted patent claims, rendering infringement not even possible, much less plausible.
Lessons For Infringement Plaintiffs
Patent plaintiffs, like Goldilocks, now have to make sure their pleadings are “just right.” Too little detail, and the claim can be dismissed as conclusory. Too much detail, and the Plaintiff risks being inconsistent with the patent claims, in which case a court might conclude that there is no infringement. The pleadings as to the two patents that were reversed on appeal in the Bot M8 decision are a good starting point as a model for the level of detail that passes muster.
The Bot M8 decision holds that while a plaintiff need not plead an element-by-element case of infringement, it must do more than recite the patent and identify the accused device. Rather, it must plead a “plausible” case of infringement (the general pleading standard in federal court), which may vary by the complexity of the case.
As to one of Bot M8’s patents, the plaintiff pleaded so much detail, that review of the pleadings indicated that they were inconsistent with a charge of infringement. So the Federal Circuit affirmed dismissal of that patent. But as to two other Bot M8’s patents, the Federal Circuit found that the district court had insisted on too much detail, and reversed the dismissal.
The Bot M8 Case
Bot M8 filed suit against Sony and others in the Southern District of New York, asserting six patents relating to gaming machines and casino, arcade, and video games. That case was transferred to the Northern District of California, where that court “directed” Bot M8 to file an amended complaint specifying “every element of every claim that you say is infringed and/or explain why it can’t be done,” and to purchase and reverse engineer the accused products, if possible. Bot M8 filed a 223-page first amended complaint, which Sony moved to dismiss.
The district court granted Sony’s motion to dismiss four of the asserted patents and denied Bot M8’s motion for leave to file a second amended complaint. (The district court also granted Sony’s summary judgment motion that one claim of a fifth patent was invalid under § 101, which the Federal Circuit affirmed).
On appeal, the Federal Circuit affirmed as to three patents, but reversed as to two. The pleading standards was central to its decision as to four of the patents.
Pleading Standard For Patent Infringement Cases
How much detail is required in a patent complaint has been controversial for some time. At one point, the federal rules contained a very terse model patent complaint, Form 18, which the Federal Circuit held controlled patent infringement pleading. But after that was eliminated from the rules, courts have struggled with how much details is required. Bot M8 has now brought some clarity.
The starting point is the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Inc. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court held that a plaintiff must give enough factual allegations to make out a “plausible” claim under the applicable law. That informs the pleading standard for patent infringement.
In the Bot M8 case, the Federal Circuit now further clarified the pleading requirements for patent infringement cases. It reiterated that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” But it disagreed with the district court’s instruction that a complaint must “explain . . . every element of every claim that you say is infringed and/or explain why it can’t be done.” The Court explained that under Iqbal/Twombly a plaintiff need not “prove its case at the pleadings stage” and is not required to plead infringement on an element-by-element basis.
Rather, the court explained that it is enough “that a complaint place the alleged infringer on notice of what activity . . . is being accused of infringement.” How much detail is required will depend on the case. Among the factors a court should consider are (1) the complexity of the technology, (2) the materiality of an element to practicing the asserted claims, and (3) the nature of the allegedly infringing device.
Bot M8’s Mixed Results
As to two of the asserted patents, the Federal Circuit held that the district court had insisted upon too much detail, and reversed the dismissal. The pleadings, though not as detailed as the district court had insisted, did provide enough detail to make out a plausible case for infringement.
As to another patent, however, the Amended Complaint merely made conclusory allegations that the accused device met all the claim elements, and the court affirmed the dismissal.
As to a fourth patent, the Federal Circuit reasoned that the Amended Complaint contained too much rather than too little, to the point that Bot M8 had essentially pleaded itself out of court. Bot M8 took a “kitchen sink” approach that revealed pleadings that were inconsistent with the asserted patent claims, rendering infringement not even possible, much less plausible.
Lessons For Infringement Plaintiffs
Patent plaintiffs, like Goldilocks, now have to make sure their pleadings are “just right.” Too little detail, and the claim can be dismissed as conclusory. Too much detail, and the Plaintiff risks being inconsistent with the patent claims, in which case a court might conclude that there is no infringement. The pleadings as to the two patents that were reversed on appeal in the Bot M8 decision are a good starting point as a model for the level of detail that passes muster.