In Re Bill of Lading Transmission and Processing System Patent Litigation ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
IN RE BILL OF LADING TRANSMISSION AND
PROCESSING SYSTEM PATENT LITIGATION
__________________________
R+L CARRIERS, INC.,
Plaintiff-Appellant,
v.
DRIVERTECH LLC,
Defendant-Appellee,
and
PEOPLENET COMMUNICATIONS CORPORATION,
QUALCOMM, INC., AND MICRODEA, INC.,
Defendants-Appellees,
and
INTERMEC TECHNOLOGIES CORP.,
Defendant-Appellee,
and
AFFILIATED COMPUTER SERVICES, INC.,
Defendant-Appellee,
and
INTERSTATE DISTRIBUTOR COMPANY,
Defendant-Appellee,
R+L CARRIERS v. DRIVERTECH 2
and
PITT OHIO EXPRESS INC. AND BERRY & SMITH
TRUCKING LTD.,
Defendants.
__________________________
2010-1493, -1494, -1495, -1496, 2011-1101, -1102
__________________________
Appeals from the United States District Court for the
Southern District of Ohio in case nos. 09-MD-2050, 09-
CV-0532,-09-CV-0818, 09-CV-0445,-09-CV-0179, 09-CV-
0502, and 09-CV-0472, Senior Judge Sandra S. Beckwith.
__________________________
Decided: June 7, 2012
_________________________
ANTHONY C. WHITE, Thompson Hine LLP, of Colum-
bus, Ohio, argued for plaintiff-appellant. With him on the
brief was O. JUDSON SCHEAF, III.
JONATHAN S. FRANKLIN, Fulbright & Jaworski L.L.P.,
of Washington, DC, argued for all defendants-appellees.
With him on the brief for defendants-appellees Qual-
comm, Inc., et al was TILLMAN J. BRECKENRIDGE; and
RICHARD S. ZEMBEK, of Dallas Texas. Of counsel was
LAURA J. BORST, of Minneapolis, Minnesota. On the brief
for defendant-appellee DriverTech, LLC, was SCOTT M.
PETERSEN and PHILIP D. DRACHT, Fabian & Clendenin,
P.C., of Salt Lake City, Utah.
CARSON P. VEACH, Freeborn & Peters LLP, of Chicago,
Illinois, for defendant-appellee Intermec Technologies
Corp. With him on the brief was JACOB D. KOERING.
3 R+L CARRIERS v. DRIVERTECHCH
THOMAS H. SHUNK, Baker & Hostetler LLP, of Cleve-
land, Ohio, for defendant-appellee Affiliated Computer
Services, Inc.
__________________________
Before NEWMAN, PROST, and O’MALLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Dissenting in part and concurring in part opinion filed by
Circuit Judge NEWMAN.
O’MALLEY, Circuit Judge.
In this patent infringement action, R+L Carriers, Inc.
(“R+L”) appeals the district court’s dismissal with preju-
dice of its amended complaints and counterclaims against
DriverTech LLC (“DriverTech”), Affiliated Computer
Services, Inc. (“ACS”), PeopleNet Communications Corp.
(“PeopleNet”), Intermec Technologies Corp. (“Intermec”),
Microdea, Inc. (“Microdea”), and Qualcomm, Inc. (“Qual-
comm”). 1 R+L alleged that the Appellees each indirectly
infringed United States Patent No. 6,401,078 (filed Apr. 3,
2000) (“the ’078 patent”). The district court dismissed the
amended complaints because it believed they failed to
state a claim to relief that was plausible on its face as
required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Be-
cause we agree that R+L failed to state a claim of con-
tributory infringement against the Appellees, but find
that R+L adequately stated a claim of induced infringe-
ment, we affirm-in-part, reverse-in-part and remand.
1We refer to all of R+L’s pleadings as “complaints.”
Since, whether asserted as complaints or counterclaims,
R+L’s allegations are judged under the same standards.
R+L CARRIERS v. DRIVERTECH 4
I. BACKGROUND
A. Factual Background
The ’078 patent relates to the less-than-a-load truck-
ing industry. R+L, the owner of the ‘078 patent, is a
major less-than-a-load carrier that utilizes the ’078’s
patented method in its business. Order Granting Joint
Mot. to Dismiss at 2, In Re Bill of Lading Transmission &
Processing Sys. Patent Litig., No. 1:09-md-2050 (S.D. Ohio
July 15, 2010), ECF No. 162 (“July 15, 2010 Order”). As
explained by the patent, carriers in this industry pick up
freight from several different customers, which is often
destined for different locations around the country.
Because the freight is intended for different locations, to
enable efficient delivery, the freight must be sorted and
placed onto trucks with freight that is destined for a
similar location. To accomplish this sorting, the freight is
taken to a terminal where it is unloaded from the truck
and consolidated with other freight headed in the same
direction. After consolidation, the freight is reloaded onto
trucks. These trucks then either deliver the freight to its
destination, or transport the freight to a distribution
terminal in another city to be re-sorted and re-
consolidated for delivery. ’078 patent col.1 ll.34–48.
To more efficiently enable delivery in the less-than-a-
load trucking industry, the ’078 patent claims a method
that “automates the process of receiving transportation
documentation and producing advance loading manifests
therefrom to optimize load planning and dynamic product
shipment and delivery control.” Id. at abstract. The
patented method enables shipping documents to be sent
directly from the truck driver to a common point, such as
a terminal, so billing and load planning can occur while
the driver is en route with the freight. Id. at col.1 ll. 15–
5 R+L CARRIERS v. DRIVERTECHCH
20. Claim 1, the patent’s only independent claim, recites
seven steps:
A method for transferring shipping documentation
data for a package from a transporting vehicle to a
remote processing center:
placing a package on the transporting vehicle;
using a portable document scanner to scan an im-
age of the documentation data for the package,
said image including shipping details of the pack-
age;
providing a portable image processor capable of
wirelessly transferring the image from the trans-
porting vehicle;
wirelessly sending the image to a remote process-
ing center;
receiving the image at said remote processing cen-
ter; and
prior to the package being removed from the
transporting vehicle, utilizing said documentation
data at said remote processing center to prepare a
loading manifest which includes said package for
further transport of the package on another
transporting vehicle.
Id. at col.13 l.40–col.14 l.12.
B. Procedural History Prior to Dismissal of the
Amended Complaints
In 2008, R+L learned that several of the Appellees
and their customers were likely infringing the ’078 pat-
ent. In response, R+L sent cease-and-desist letters to
DriverTech, PeopleNet, and several companies R+L
suspected of direct infringement. July 15, 2010 Order at
R+L CARRIERS v. DRIVERTECH 6
2. After receiving the letters, DriverTech and PeopleNet
filed declaratory judgment actions in their home districts,
seeking judgments of invalidity and non-infringement.
R+L answered and filed counterclaims in those courts. In
addition, R+L initiated lawsuits in the Southern District
of Ohio against the remaining Appellees and several
alleged direct infringers.
Because these lawsuits were spread throughout three
federal district courts, R+L moved to have the cases
consolidated and transferred to the Southern District of
Ohio. Joint Appendix (“J.A.”) 229–30. Granting the
motion, the Judicial Panel on Multidistrict Litigation
transferred the cases 2 to the Southern District of Ohio
and assigned them to Judge Sandra Beckwith. The cases
were consolidated for discovery and all pretrial proceed-
ings, including claim construction.
After the cases were consolidated, ten of the alleged
indirect infringers filed motions to dismiss or motions for
judgment on the pleadings. July 15, 2010 Order at 3.
After reviewing the briefing and conducting oral argu-
ment, the district court granted all of those motions. Id.The district court granted R+L leave to amend its claims,
however. Id. R+L elected to file amended complaints
against each of the six Appellees. Id.While each of the amended complaints contains the
same allegations with respect to the “nature of action,”
“jurisdiction and venue,” and “infringed patent sections,”
they contain unique allegations as to the actions that
allegedly give rise to the individual complaints. In the
2 PeopleNet Commc’ns Corp. v. R&L Carriers, Inc.
and DriverTech, LLC v. R&L Carriers, Inc. were trans-
ferred from the District of Minnesota and the District of
Utah respectively. The other six cases consolidated by
this order were already in the Southern District of Ohio.
7 R+L CARRIERS v. DRIVERTECHCH
discussion section of this opinion, we discuss these factual
differences and the sufficiency of each individual amended
complaint. Here, we briefly summarize the general
nature of R+L’s allegations, providing greater detail in
Section II, as appropriate.
The amended complaints contain detailed factual al-
legations and, including attached exhibits, are each over
one-hundred pages in length. Each outlines various
products sold by the individual Appellees for use in the
trucking industry. On the basis of quotations from Appel-
lees’ websites, advertising, and industry publications,
R+L alleges facts about these products. The amended
complaints also contain allegations about Appellees’
strategic partnerships with other companies, their adver-
tising, and their involvement at trade shows. Following
these factual allegations, R+L asserts a series of “reason-
able inferences,” which it alleges can be drawn from the
facts pled. Based on these inferences and factual allega-
tions, R+L asserts that each Appellee is liable for induc-
ing infringement and contributory infringement of the
’078 patent.
C. Procedural History Culminating in Dismissal
of the Amended Complaints
In response to the amended complaints, Appellees
filed a joint motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, arguing
that the amended complaints failed to plausibly allege
either direct infringement or indirect infringement. After
briefly summarizing the contents of the amended com-
plaints, the district court addressed the merits of the joint
motion to dismiss. With respect to direct infringement,
the district court concluded that the Intermec Amended
Complaint failed to state a claim because it did not iden-
tify a specific Intermec customer who directly infringed
R+L CARRIERS v. DRIVERTECH 8
the ’078 patent. Id. at 27. The district court then con-
cluded that the other five amended complaints also failed
to state a claim of direct infringement. Id. at 31. Al-
though these complaints named specific customers that
R+L asserted were directly infringing the ’078 patent, the
district court concluded that the “reasonable inferences”
contained in the complaints regarding direct infringement
by those customers were not, in fact, reasonable. Id. at
31.
Though a claim of indirect infringement can only arise
where there is direct infringement and the district court
concluded that no adequate claim of direct infringement
had been pled, the court alternatively addressed whether
the amended complaints adequately pled indirect in-
fringement. Id. at 31 (“Assuming, however, that a more
generous standard of indulging such ultimate inferences
should be applied after Twombly/Iqbal, the Court will
review Defendants’ challenges to R&L’s [sic] indirect
infringement claims.”). Because the district court deter-
mined R+L failed to plausibly plead that the Appellees
had specific intent to induce infringement of the method
outlined in ’078 patent, the district court concluded that
the amended complaints failed to state a claim of induced
infringement. Id. at 37.
With respect to R+L’s contributory infringement alle-
gations, the district court first noted that, to plead con-
tributory infringement plausibly, R+L must allege facts
supporting the conclusion that the accused products are
not staple articles of commerce suitable for substantial
noninfringing uses. Id. at 37. The district court con-
cluded that, because the amended complaints explain that
the accused products can be used to speed bill payment,
track a truck’s locations, or monitor truck conditions, R+L
failed to plausibly plead that the accused products were
9 R+L CARRIERS v. DRIVERTECHCH
not capable of substantial noninfringing uses. Id. at 39–
42, 44.
Finally, because the district court dismissed R+L’s
claims of indirect infringement against the six Appellees,
it concluded that any justiciable controversies giving rise
to R+L’s declaratory judgment claims were moot. Id. at
48. The district court, therefore, declined to exercise its
discretionary jurisdiction over these claims and dismissed
those as well. Id.
R+L filed a timely appeal to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
II. DISCUSSION
Federal Rule of Civil Procedure 8(a)(2), “generally re-
quires only a plausible ‘short plain’ statement of the
plaintiff’s claim,” showing that the plaintiff is entitled to
relief. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011).
Because it raises a purely procedural issue, an appeal
from an order granting a motion to dismiss for failure to
state a claim upon which relief can be granted is reviewed
under the applicable law of the regional circuit. McZeal v.
Sprint Nextel Corp., 501 F.3d 1354, 1355–56 (Fed. Cir.
2007) (citing C&F Packing Co. v. IBP, Inc., 224 F.3d 1296,
1306 (Fed. Cir. 2000)). In the United States Court of
Appeals for the Sixth Circuit, a district court’s grant of a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is reviewed de novo. Watson Carpet & Flooring
Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 456
(6th Cir. 2011) (citing In re Travel Agent Comm’n Anti-
trust Litig., 583 F.3d 896, 902 (6th Cir. 2009)). While we
generally construe the complaint in the light most favor-
able to the plaintiff, accept its allegations as true, and
draw all reasonable inferences in favor of the plaintiff, we
are not required to “accept as true legal conclusions or
unwarranted factual inferences.” Jones v. City of Cincin-
R+L CARRIERS v. DRIVERTECH 10
nati, 521 F.3d 555, 559 (6th Cir. 2008) (quoting Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[W]e are not
bound to accept as true a legal conclusion couched as a
factual allegation.”) (internal quotation marks omitted).
To survive Appellees’ motion to dismiss, R+L’s com-
plaint must plead “enough factual matter” that, when
taken as true, “state[s] a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Fabian v. Fulmer Helmets, Inc., 628 F.3d
278, 280 (6th Cir. 2010). This plausibility standard is met
when “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at678 (citing Twombly, 550 U.S. at 556). Although the
standard “asks for more than a sheer possibility that a
defendant has acted unlawfully,” it is not “akin to a
probability requirement.” Id. (internal quotation marks
omitted); see also Twombly, 550 U.S. at 556 (“[O]f course,
a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.”) (inter-
nal quotations and citation omitted); Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam) (“Specific facts are not
necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon
which it rests.’ ” (quoting Twombly, 550 U.S. at 555 (em-
phasis added) (citation omitted) (internal quotation marks
omitted)). A complaint that merely pleads facts that are
consistent with a defendant’s liability “stops short of the
line between possibility and plausibility . . . .” Twombly,
550 U.S. at 546 (citation omitted). “Determining whether
a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
11 R+L CARRIERS v. DRIVERTECHCH
draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679 (citation omitted).
R+L argues that the district court erred by: (1) hold-
ing that “offer to sell” liability does not exist under 35
U.S.C. § 271(c) for a method patent; (2) holding that a
complaint must identify a specific direct infringer to
assert a claim for indirect infringement; (3) concluding
that its claims for contributory infringement failed to
plausibly state a claim for relief; (4) dismissing R+L’s
claims for induced infringement against the Appellees;
and (5) refusing to exercise jurisdiction over R+L’s claims
for declaratory judgment. Appellant’s Br. 2. Each of
R+L’s arguments are addressed in turn. 3
A.
In its order dismissing R+L’s amended complaints,
the district court stated:
[i]n dismissing R&L’s [sic] original claims, the
Court held that R&L [sic] must plead specific facts
plausibly establishing that direct infringement
has occurred or is occurring in order to proceed on
its indirect infringement claims. Direct infringe-
ment of a method patent requires evidence that
some entity is performing each and every step of
the method. An “offer to sell” a product, without
any factual allegations that the product was or is
actually being used by someone to practice the
patented method, is insufficient.
3 Qualcomm, Microdea, PeopleNet, and DriverTech
submitted a joint brief in this matter, which will be re-
ferred to as the “Qualcomm Br.” ACS and Intermec,
however, filed individual briefs, which will be referred to
as the “ACS Br.” and the “Intermec Br.” respectively.
R+L CARRIERS v. DRIVERTECH 12
July 15, 2010 Order at 25. The district court concluded
that “ ‘offer to sell’ liability does not apply to claims of
infringement of a method patent.” Order Granting Mots.
to Dismiss at 13, In Re Bill of Lading Transmission &
Processing Sys. Patent Litig., No. 1:09-md-2050 (S.D. Ohio
Feb. 23, 2010), ECF No. 113 (“Feb. 23, 2010 Order”). R+L
asserts that this conclusion was erroneous and asks that
we reverse it. We need not decide whether a method
patent can be directly infringed by offering to sell the
patented method in order to resolve this appeal, however.
In an effort to establish that it did not need to plead
that a specific customer of the Appellees directly infringed
the ’078 patent, R+L argued to the district court that,
because § 271(c) 4 liability can be premised on offers to
sell, no direct infringement was necessary to establish
contributory infringement. This is an incorrect statement
of the law.
It is axiomatic that “[t]here can be no inducement or
contributory infringement without an underlying act of
direct infringement.” Linear Tech. Corp. v. Impala Linear
Corp., 379 F.3d 1311, 1326 (Fed. Cir. 2004) (citation
omitted); see also Dynacore Holdings Corp. v. U.S. Philips
4 § 271(c) states that
[w]hoever offers to sell or sells within the United
States or imports into the United States a compo-
nent of a patented machine, manufacture, combi-
nation, or composition, or a material or apparatus
for use in practicing a patented process, constitut-
ing a material part of the invention, knowing the
same to be especially made or especially adapted
for use in an infringement of such patent, and not
a staple article or commodity of commerce suitable
for substantial noninfringing use, shall be liable
as a contributory infringer.
35 U.S.C. § 271(c) (emphasis added).
13 R+L CARRIERS v. DRIVERTECHCH
Corp., 363 F.3d 1263, 1272 (Fed. Cir. 2004) (“Indirect
infringement, whether inducement to infringe or con-
tributory infringement, can only arise in the presence of
direct infringement . . . .”); Joy Techs., Inc. v. Flakt, Inc., 6
F.3d 770, 774 (Fed. Cir. 1993) (“Liability for either active
inducement of infringement or for contributory infringe-
ment is dependent upon the existence of direct infringe-
ment.”). In light of this case law, R+L is incorrect that a
party could be liable for contributory infringement even if
no one has yet directly infringed the patent in question.
R+L appears to confuse liability for direct infringe-
ment based upon an offer to sell a patented method with
contributory infringement liability based upon offers to
sell a component, material, or apparatus. These are
distinct concepts, with distinct standards. Because R+L
alleges only claims for indirect infringement against the
Appellees and there are no allegations that either Appel-
lees or their customers offered to sell the patented
method, there is no need to address whether an offer to
sell a patented method gives rise to liability under
§ 271(a), i.e., direct infringement. The only relevant
questions before the district court were whether contribu-
tory infringement can be based on an offer to sell a prod-
uct for use in practicing a patented method—by § 271(c)’s
plain terms, it can—and whether direct infringement is a
prerequisite for a finding of contributory infringement
based on such an offer to sell—it is.
B.
Because liability for indirect infringement of a patent
requires direct infringement, R+L’s amended complaints
must plausibly allege that the ’078 patent was directly
infringed to survive Appellees’ motion to dismiss. As
noted above, the district court concluded that none of the
amended complaints adequately pled direct infringement.
R+L CARRIERS v. DRIVERTECH 14
July 15, 2010 Order at 31. On appeal, R+L argues that
its amended complaints “adequately plead the existence of
a direct infringer to support its indirect infringement
claims” against the Appellees. Appellant’s Br. 49. In
response, Appellees argue that R+L failed to plead direct
infringement sufficiently because the amended complaints
make only conclusory allegations of direct infringement
based upon unreasonable inferences. In addition, Inter-
mec argues that the Intermec Amended Complaint is
deficient because it fails to identify one of its customers as
a direct infringer. Intermec Br. 28. For the reasons
explained below, we conclude that the district court erred
in finding R+L’s allegations of direct infringement defi-
cient.
Recent Supreme Court precedent has defined the con-
tours of the plausibility requirement. E.g., Matrixx Initia-
tives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323 (2011);
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. These
cases address the civil pleading standards in a variety of
civil contexts. None address the sufficiency of a complaint
alleging patent infringement or causes of action for which
there is a sample complaint in the Appendix of Forms to
the Federal Rules of Civil Procedure, however. Here,
there is a form that governs at least some aspects of R+L’s
amended complaints. Specifically, Form 18 sets forth a
sample complaint for direct patent infringement. As
explained by this court, Form 18 requires:
(1) an allegation of jurisdiction; (2) a statement
that the plaintiff owns the patent; (3) a statement
that defendant has been infringing the patent ‘by
making, selling, and using [the device] embodying
the patent’; (4) a statement that the plaintiff has
given the defendant notice of its infringement;
and (5) a demand for an injunction and damages.
15 R+L CARRIERS v. DRIVERTECHCH
McZeal, 501 F.3d at 1357. 5
The sample complaint in the Appendix of Forms is
relevant because Federal Rule of Civil Procedure 84
states that “the forms in the Appendix suffice under these
rules and illustrate the simplicity and brevity that these
rules contemplate.” Fed. R. Civ. P. 84. The Advisory
Committee Notes to the 1946 amendment of Rule 84
states that “[t]he amendment serves to emphasize that
the forms contained in the Appendix of Forms are suffi-
cient to withstand attack under the rules under which
they are drawn, and that the practitioner using them may
rely on them to that extent.” Id. The language of Rule
84 and the Advisory Committee Notes make “clear that a
pleading, motion, or other paper that follows one of the
Official Forms cannot be successfully attacked.” 12
Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure § 3162 (2d ed.
1997). As the Supreme Court has noted, moreover, 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.” Leatherman v. Tar-
rant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168 (1993); see also Twombly, 550 U.S. at569 n.14 (acknowledging that altering the Federal Rules
of Civil Procedure cannot be accomplished by judicial
interpretation). Accordingly, to the extent the parties
argue that Twombly and its progeny conflict with the
Forms and create differing pleadings requirements, the
Forms control. See McZeal, 501 F.3d at 1360 (Dyk, J.,
5 When McZeal was decided, the model “Complaint
for Patent Infringement” appeared in Form 16. Subse-
quently, the Forms were renumbered, and the model
patent infringement complaint was moved to Form 18.
For consistency, this opinion will refer to the old Form 16
as Form 18.
R+L CARRIERS v. DRIVERTECH 16
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 accor-
dance with Form [18] would be sufficient under Rule 8 to
state a claim.”). Thus, whether R+L’s amended com-
plaints adequately plead direct infringement is to be
measured by the specificity required by Form 18. 6
Appellees’ arguments all focus on whether the
amended complaints’ allegations of direct infringement
contain sufficient factual detail to withstand attack under
Twombly and Iqbal. For example, Qualcomm argues that
“R+L does not identify a single loading manifest prepared
by any of Appellees’ customers, let alone one that includes
wirelessly-transmitted data, and was prepared prior to
removing the package from the first truck, and for the
claimed purpose.” Qualcomm Br. 44. In essence, the
Appellees argue that the amended complaints are defi-
cient because they do not describe precisely how each
element of the asserted claims are practiced by their
customers. When compared to the requirements of Form
18, this argument is premised on a pleading standard
that is too stringent. See McZeal, 501 F.3d at 1356–57.
6 It will not always be true that a complaint which
contains just enough information to satisfy a governing
form will be sufficient under Twombly and its progeny.
Resolution of that question will depend upon the level of
specificity required by the particular form, the element of
the cause of action as to which the facts plead are alleg-
edly inadequate, and the phrasing of the complaint being
challenged. See, e.g., Hamilton v. Palm, 621 F.3d 816,
817–18 (8th Cir. 2010) (finding complaint adequate under
both Form 13 and Twombly); cf. Twombly, 550 U.S. at 564
n.10 (noting that forms governing claims for negligence
require sufficient detail to permit a defendant to “know
what to answer.”).
17 R+L CARRIERS v. DRIVERTECHCH
As we held in McZeal, Form 18 and the Federal Rules
of Civil Procedure do not require a plaintiff to plead facts
establishing that each element of an asserted claim is
met. McZeal, 501 F.3d at 1357. Indeed, a plaintiff need
not even identify which claims it asserts are being in-
fringed. Id. 7
As it relates to direct infringement, the Qualcomm,
Microdea, PeopleNet, DriverTech, and ACS Amended
Complaints are sufficient when measured against this
standard. These amended complaints each assert that a
specific customer or customers are infringing the ’078
patent by using the patented method. For example, the
Qualcomm Amended Complaint alleges that, in light of
the facts pled, it is reasonable to infer that Cargo Trans-
porters uses “In-Cab Scanning, the Mobile Computer
Platform, and other services and devices to scan and
wirelessly transmit bills-of-lading from inside the truck
cab to the back office where advance loading manifests
are prepared. Those actions constitute direct infringe-
ment of the ’078 Patent.” R+L Carriers, Inc.’s First Am.
Compl. for Patent Infringement & Declaratory J. at 15, In
Re Bill of Lading Transmission & Processing Sys. Patent
Litig., No. 1:09-md-2050 (S.D. Ohio April 6, 2010), ECF
No. 123 (“Qualcomm Am. Compl.”). This allegation goes
beyond what is required by Form 18. The Qualcomm
Amended Complaint states that the patent is being in-
fringed by use of the patented method by specific Qual-
comm customers, and it references specific claim elements
that R+L asserts are being practiced. As such, the com-
plaint provides Qualcomm with information about which
7 While there may be criticism of the text of Form
18, it is not within our power to rewrite it; only an act of
Congress can revise the Federal Rules. See Leatherman,
502 U.S. at 168.
R+L CARRIERS v. DRIVERTECH 18
claims of the patent R+L asserts are being infringed, and
by whom, and about the activities R+L believes constitute
infringement. The Microdea, PeopleNet, DriverTech, and
ACS Amended Complaints contain similar allegations. 8
These five amended complaints, described in more detail
below, sufficiently plead direct infringement of the ’078
patent.
Turning to the Intermec Amended Complaint, al-
though it contains allegations similar to those cited above,
it does not allege that a specific Intermec customer is
infringing the ’078 patent. Instead, it alleges that
“Intermec’s trucking customers use its Fixed Vehicle
Computers, Mobile Scanners and Transportation and
Logistics Solutions to scan bills-of-lading from inside the
truck cab, wirelessly transmit those scanned bills-of-
lading to their back offices, and prepare advance loading
manifests.” R+L Carriers, Inc.’s First Am. Compl. for
Patent Infringement & Declaratory J. at 14, In Re Bill of
Lading Transmission & Processing Sys. Patent Litig., No.
8 See R+L Carriers, Inc.’s First Am. Compl. for Pat-
ent Infringement and Declaratory J. at 11, 13, In Re Bill
of Lading Transmission and Processing Sys. Patent Litig.,
No. 1:09-md-2050 (S.D. Ohio April 6, 2010), ECF No. 122
(“Microdea Am. Compl.”); R+L Carriers, Inc.’s First Am.
Countercl. for Patent Infringement and Declaratory J. at
11, 14, 16, In Re Bill of Lading Transmission and Process-
ing Sys. Patent Litig., No. 1:09-md-2050 (S.D. Ohio April
6, 2010), ECF No. 125 (“PeopleNet Am. Compl.”); R+L
Carriers, Inc.’s First Am. Countercl. for Patent Infringe-
ment and Declaratory J. at 14, In Re Bill of Lading
Transmission and Processing Sys. Patent Litig., No. 1:09-
md-2050 (S.D. Ohio April 6, 2010), ECF No. 121
(“DriverTech Am. Comp.”); R+L Carriers, Inc.’s First Am.
Compl. for Patent Infringement and Declaratory J. at 15–
16, In Re Bill of Lading Transmission and Processing Sys.
Patent Litig., No. 1:09-md-2050 (S.D. Ohio April 6, 2010),
ECF No. 124 (“ACS Am. Compl.”).
19 R+L CARRIERS v. DRIVERTECHCH
1:09-md-2050 (S.D. Ohio April 6, 2010), ECF No. 126
(“Intermec Am. Compl.”). Accordingly, R+L asserts only
that “those customers are in fact practicing the ’078
Patent.” Id. Because of this distinction, we must deter-
mine whether a plaintiff alleging indirect infringement
must name a specific customer to adequately plead the
predicate direct infringement.
This court has upheld claims of indirect infringement
premised on circumstantial evidence of direct infringe-
ment by unknown parties. E.g., Lucent Techs., Inc. v.
Gateway, Inc., 580 F.3d 1301, 1318 (Fed. Cir. 2009)
(“[T]he jury in the present case could have reasonably
concluded that, sometime during the relevant period from
2003 to 2006, more likely than not one person somewhere
in the United States had performed the claimed method
using the Microsoft products.”). Given that a plaintiff’s
indirect infringement claims can succeed at trial absent
direct evidence of a specific direct infringer, we cannot
establish a pleading standard that requires something
more. To state a claim for indirect infringement, there-
fore, a plaintiff need not identify a specific direct infringer
if it pleads facts sufficient to allow an inference that at
least one direct infringer exists. E.g., Atwater Partners of
Tex. LLC v. AT&T, Inc., No. 2:10-cv-175, 2011 WL
1004880, at *3 (E.D. Tex. Mar. 18, 2011) (holding that
plaintiff’s complaint does not need to identify a specific
third-party direct infringer to state a claim for indirect
infringement); Oy Ajat, Ltd. v. Vatech Am., Inc., No. 10-
4875, 2011 WL 1458052, at *4 (D.N.J. Apr. 14, 2011)
(same). As long as the complaint in question contains
sufficient factual allegations to meet the requirements of
Form 18, the complaint has sufficiently pled direct in-
fringement. The allegations in the Intermec Amended
Complaint satisfy those requirements.
R+L CARRIERS v. DRIVERTECH 20
C.
Having determined that all six of the amended com-
plaints adequately plead direct infringement, we next
consider R+L’s argument that the district court erred by
holding in the alternative that the amended complaints
fail to state a claim for indirect infringement. Form 18
does not aid R+L in this inquiry. The Forms are control-
ling only for causes of action for which there are sample
pleadings. Cf. Twombly, 550 U.S. at 564 n.10 (discussing
the requirements of model Form 9 for pleading negli-
gence). We agree with several district courts that have
addressed this issue that Form 18 should be strictly
construed as measuring only the sufficiency of allegations
of direct infringement, and not indirect infringement.
E.g., Tech. Licensing Corp. v. Technicolor USA, Inc., 03-
cv-1329, 2010 WL 4070208, at *2 (E.D. Cal. Oct. 18, 2010)
(“No adequate justification exists for holding indirect
infringement claims, which contain additional elements
not found in direct infringement claims, to the standard of
McZeal and Form 18. Thus, the general principles of
Twombly and Iqbal must be applied to indirect infringe-
ment claims.”) (internal footnotes omitted); Sharafabadi
v. Univ. of Idaho, C09-1043, 2009 WL 4432367, at *2–3,
*5 n.7 (W.D. Wash. Nov. 27, 2009) (same). In other
words, because Form 18 addresses only direct infringe-
ment, we must look to Supreme Court precedent for
guidance regarding the pleading requirements for claims
of indirect infringement.
1. Contributory Infringement
Determining whether a complaint states a plausible
claim for relief is a very “context-specific task.” Iqbal, 556
U.S. at 679. Thus, the district court was required to
analyze the facts plead in the amended complaints and all
documents attached thereto with reference to the ele-
21 R+L CARRIERS v. DRIVERTECHCH
ments of a cause of action for contributory infringement to
determine whether R+L’s claims of contributory infringe-
ment were in fact plausible. Contributory infringement
occurs if a party sells or offers to sell, a material or appa-
ratus for use in practicing a patented process, and that
“material or apparatus” is material to practicing the
invention, has no substantial non-infringing uses, and is
known by the party “to be especially made or especially
adapted for use in an infringement of such patent.” 35
U.S.C. § 271(c); see also Cross Med. Prods., Inc. v. Med-
tronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed. Cir.
2005). To state a claim for contributory infringement,
therefore, a plaintiff must, among other things, plead
facts that allow an inference that the components sold or
offered for sale have no substantial non-infringing uses.
See Cross Med. Prods., 424 F.3d at 1312 (quoting Golden
Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054,
1061 (Fed. Cir. 2004)).
The district court focused on this “no substantial non-
infringing uses” prong of a cause of action for contributory
infringement and concluded that the amended complaints
failed to state a claim for contributory infringement
because the facts alleged demonstrated that the Appel-
lees’ products do have substantial non-infringing uses.
Importantly, the district court did not conclude that the
allegations of contributory infringement lacked sufficient
detail to satisfy the specificity requirement of Twombly
and Iqbal; the district court found that affirmative allega-
tions of fact in the amended complaints defeated any
claim of contributory infringement. 9
9 Because the plaintiff attached substantial mate-
rial to its amended complaints, the district court was
authorized to consider that material when assessing
whether or not defendants’ products had substantial non-
infringing uses.
R+L CARRIERS v. DRIVERTECH 22
R+L argues that the district court erred in granting
Appellees’ motion because: (1) Appellees’ products as
combined and adapted have no substantial non-infringing
uses; and (2) claim construction is a necessary predicate
to determining whether a product has substantial non-
infringing uses.
In the context of a claim of contributory infringement
under § 271(c), a substantial non-infringing use is any use
that is “not unusual, far-fetched, illusory, impractical,
occasional, aberrant, or experimental.” Vita-Mix Corp. v.
Basic Holdings, Inc., 581 F.3d 1317, 1327–29 (Fed. Cir.
2009). R+L argues that its contributory infringement
claims are adequate because all of the amended com-
plaints state that, as customized by the relevant Appellee
“for their trucking customers, the process for scanning
and wirelessly transmitting bills-of-lading from the truck
cab to the back office for the preparation of loading mani-
fests has no other substantial non-infringing use.” E.g.,
Microdea Am. Compl. at 20. On the basis of this allega-
tion, R+L argues that it has adequately plead that Appel-
lees’ products have no substantial non-infringing uses.
We disagree.
These allegations are tailored too narrowly; they say
nothing more than “if you use this device to perform the
patented method, the device will infringe and has no non-
infringing uses.” But that is not the relevant inquiry. For
purposes of contributory infringement, the inquiry focuses
on whether the accused products can be used for purposes
other than infringement. Explaining the seminal Su-
preme Court contributory infringement case, in which
VCR manufacturers were held not liable for contributory
copyright infringement, we stated that “[t]he accused
VCR could be used in two ways: to infringe a copyright by
building a ‘library’ of broadcast movies, or in a substan-
tial, noninfringing way to ‘time-shift’ a program for later
23 R+L CARRIERS v. DRIVERTECHCH
viewing or to record an uncopyrighted program.” Ricoh
Co. v. Quanta Computer Inc., 550 F.3d 1325, 1339 (Fed.
Cir. 2008) (citing Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 443–46 (1984)). If the proper
inquiry for determining substantial non-infringing use
was the inquiry suggested by R+L, the VCR manufactur-
ers in Sony would have been liable for contributory in-
fringement of copyrights as long as the VCRs were used to
create a library, i.e., in an infringing way. The fact that a
product may be unavailable for simultaneous non-
infringing uses while being used to infringe, is not deter-
minative. Where the product is equally capable of, and
interchangeably capable of both infringing and substan-
tial non-infringing uses, a claim for contributory in-
fringement does not lie. The materials regarding
Appellees’ products from which R+L quotes, and, which
are attached to the amended complaints, contain repeated
descriptions of non-infringing uses to which the accused
products can be put. R+L, thus, supplies the very facts
which defeat its claims of contributory infringement.
Despite its own reference to the many possible uses of
Appellees’ products, R+L claims that this court’s decision
in Ricoh supports its claim that those uses are not “sub-
stantial non-infringing” ones. This reliance is misplaced.
In Ricoh, this court held that summary judgment of no
contributory infringement could not be granted in favor of
an optical disc drive manufacturer because, although its
drives were capable of writing data by either an infring-
ing method or a non-infringing method, the drives con-
tained “at least some distinct and separate components
used only to perform the allegedly infringing write meth-
ods.” 550 F.3d at 1336, 1340. R+L’s amended complaints
do not allege that certain of Appellees’ products can
perform the infringing method and only the infringing
method. Rather, as noted, R+L alleges that if the prod-
R+L CARRIERS v. DRIVERTECH 24
ucts are used to scan bills-of-lading and if the bills-of-
lading are used to make a loading manifest, then the
products have no substantial non-infringing uses. But
Appellees’ products do not need to be used to practice the
patented method, and R+L’s own allegations make clear
that they can be used for multiple other purposes. That
practicing the patented method may be the most logical or
useful purpose for Appellees’ products does not render the
alternative uses “unusual, far-fetched, illusory, impracti-
cal, occasional, aberrant, or experimental.” Vita-Mix
Corp., 581 F.3d at 1327–29. 10
Finally, R+L argues that the district court erred by
determining that there were substantial non-infringing
uses for Appellee’s products without first construing the
claims of the patent. Appellant’s Br. 39–43. As the
amended complaints make clear, Appellees’ products can
be used to, inter alia, speed billing and driver settlement,
or scan proof of delivery documents. Indeed, the amended
complaints assert that Appellees advertised these very
uses of their products. None of these tasks involves
scanning bills-of-lading which are created prior to pack-
age pick-up. ’078 patent col.1, ll.49–53. These tasks also
have nothing to do with using a bill-of-lading to plan
which loads should be consolidated onto which trucks for
10 Though R+L devotes several pages of its brief to a
discussion of Hodosh v. Block Drug Co., 833 F.2d 1575(Fed. Cir. 1987), Hodosh is not relevant here. Contrary to
R+L’s suggestion, this court did not determine whether
the product at issue in Hodosh had substantial non-
infringing uses. Indeed, we explicitly stated that “we do
not . . . express an opinion on whether toothpaste contain-
ing potassium nitrate is a ‘material part of the invention’
or is a ‘staple article or commodity of commerce suitable
for substantial noninfringing uses.’ ” Id. at 1579 n.12.
Absent a holding on this issue, Hodosh is not helpful to
R+L.
25 R+L CARRIERS v. DRIVERTECHCH
delivery. The patented method, however, requires per-
formance of all of these steps. Id. at col.13 l.40–col.14
l.46. Here, formal claim construction is not required to
reach the conclusion that each Amended Complaint
affirmatively establishes that Appellees’ products can be
used for non-infringing purposes. Nor is claim construc-
tion required to determine that these uses are not “un-
usual, far-fetched, illusory, impractical, occasional,
aberrant, or experimental.” Vita-Mix Corp., 581 F.3d at
1327. Thus, the district court did not err when it con-
cluded that the Appellees’ products had substantial non-
infringing uses without first construing the claims of the
’078 patent.
Because the amended complaints actually make clear
on their face that Appellees’ products do have substantial
non-infringing uses, R+L has not stated a claim for con-
tributory infringement against any of the Appellees. We
thus affirm dismissal of R+L’s contributory infringement
claims.
2. Induced Infringement
“Whoever actively induces infringement of a patent
shall be liable as an infringer.” 35 U.S.C. § 271(b). Li-
ability under § 271(b) “requires knowledge that the in-
duced acts constitute patent infringement.” Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011);
see also DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306
(Fed. Cir. 2006) (“[I]nducement requires that the alleged
infringer knowingly induced infringement and possessed
specific intent to encourage another’s infringement.”). To
survive Appellees’ motion to dismiss, therefore, R+L’s
amended complaints must contain facts plausibly showing
that Appellees specifically intended their customers to
infringe the ’078 patent and knew that the customer’s acts
constituted infringement. This does not mean, however,
R+L CARRIERS v. DRIVERTECH 26
that R+L must prove its case at the pleading stage.
Skinner, 131 S. Ct. at 1296 (“Because this case was re-
solved on a motion to dismiss for failure to state a claim,
the question below was ‘not whether [Skinner] will ulti-
mately prevail’ on his procedural due process claim, but
whether his complaint was sufficient to cross the federal
court’s threshold.”) (citations omitted); see also Twombly,
550 U.S. at 556 (“[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote
and unlikely.”) (internal quotation marks and citation
omitted).
The district court concluded that R+L’s amended
complaints failed to state a claim for induced infringe-
ment because its claims relied upon ultimate inferences
that the district court found “implausible and unreason-
able.” July 15, 2010 Order at 35–36. R+L argues that the
district court erred because the Appellees’ statements
quoted in the amended complaints and the reasonable
inferences drawn therefrom give rise to a plausible claim
for relief premised upon induced infringement. Appel-
lants’ Br. 27–38. We agree.
Before turning to the individual amended complaints
and the specific allegations therein, we note a flaw that
pervades the district court’s assessment of R+L’s allega-
tions of induced infringement—its failure to draw all
reasonable inferences in favor of the non-moving party.
E.g., Travel Agent Comm’n Antitrust Litig., 583 F.3d at903 (citing Jones, 521 F.3d at 559). Twombly did not alter
this basic premise. Nothing in Twombly or its progeny
allows a court to choose among competing inferences as
long as there are sufficient facts alleged to render the
non-movant’s asserted inferences plausible. Watson
Carpet, 648 F.3d at 458 (“Often, defendants’ conduct has
several plausible explanations. Ferreting out the most
27 R+L CARRIERS v. DRIVERTECHCH
likely reason for the defendants’ actions is not appropriate
at the pleadings stage.”).
In assessing whether it is reasonable to infer intent
from statements or conduct, moreover, the Supreme Court
recently made clear that a court must assess the facts in
the context in which they occurred and from the stand-
point of the speakers and listeners within that context.
Matrixx, 131 S. Ct. at 1324–25. In Matrixx, the Supreme
Court held that the plaintiff’s complaint sufficiently
alleged facts plausibly suggesting that the defendant
made material misrepresentations in violation of § 10(b)
of the Securities Exchange Act “with an intent to deceive,
manipulate, or defraud.” Id. at 1317, 1323–24. According
to the complaint, in response to information indicating
that the defendant’s Zicam product caused anosmia, 11 it
“hired a consultant to review the product . . . and con-
vened a panel of physicians and scientists in response to
[a] presentation” that suggested that Zicam caused anos-
mia. Id. at 1324. In addition, “[the defendant] issued a
press release that suggested that studies had confirmed
that Zicam does not cause anosmia when, in fact, it had
not conducted any studies relating to anosmia and the
scientific evidence at that time . . . was insufficient to
determine whether Zicam did or did not cause anosmia.”
Id. Despite these allegations, the defendant’s asserted
that the most obvious inference to draw from its actions
was that it did not disclose the information because it
believed the evidence was insufficient to indicate a causal
relationship between Zicam and anosmia. The Supreme
Court concluded, however, that the plaintiffs adequately
pled intent because the allegations, taken collectively and
in context, also gave rise to an “inference that [the defen-
11 Anosmia refers to the loss of the sense of smell.
Id. at 1314.
R+L CARRIERS v. DRIVERTECH 28
dant] elected not to disclose the reports of adverse events
not because it believed they were meaningless but be-
cause it understood their likely effect on the market.” Id.
at 1324–25. That alternative inferences from those facts
were also reasonable did not render the complaint defi-
cient.
As in Matrixx, when the allegations in R+L’s lengthy
and detailed amended complaints are considered as a
whole, and the facts are considered in the context of the
technology disclosed in the ’078 patent and the industry to
which Appellees sell and tout their products, it is clear
that the inferences R+L asks to be drawn are both rea-
sonable and plausible. 12
a. DriverTech Amended Complaint
As previously discussed, the ’078 patent discloses a
method in which documents are scanned on board vehi-
cles for use by dispatchers in preparing manifests dictat-
ing which shipments should be consolidated and shipped
on which trucks heading to which location. The
DriverTech Amended Complaint alleges that, based on
DriverTech’s public statements, it is reasonable to infer
that:
DriverTech affirmatively sells, offers to sell, en-
courages, and intends for its customers to use the
DT4000 TruckPC and DTScan In-Cab Scanning in
conjunction with other applications and processes,
and in a manner that infringes on the patented
process claimed in the ’078 Patent. DriverTech’s
12 As in Matrixx, we do not to say that these infer-
ences are, in fact, correct or that they are the only fair
inferences which can be drawn from the facts alleged. 131
S. Ct. at 1335. We determine only the sufficiency of R+L’s
complaints, in the context of the ’078 patent.
29 R+L CARRIERS v. DRIVERTECHCH
conduct amounts to active inducement of in-
fringement in violation of 35 U.S.C. § 271(b).
DriverTech Am. Compl. at 30. In support of this allega-
tion, among other things, R+L quotes DriverTech’s state-
ment that its mobile computer products allow customers
“to perform in-cab scanning of critical proof of delivery
(POD) and other driver documents” and to transmit these
documents wirelessly. Id. at 6. R+L points out that
DriverTech touts that it is partnered with McLeod Soft-
ware, “the leading provider of dispatch . . . software to the
transportation industry,” and that its products will help
“improve[] asset utilization and fleet maintenance.” Id. at
4, 6. And, the complaint alleges that DriverTech made
these claims after it received a cease and desist letter
making it aware of the ’078 patent. R+L asserts that,
when viewed in the context of the industry in which the
patented method is practiced, it is more than reasonable
to infer that DriverTech intended to induce its customers
to use its products to practice the patented method and
did so with knowledge of the patent.
DriverTech, like the district court, discounts these
facts and inferences and finds them wanting because R+L
has not provided statements from DriverTech which
specifically instruct DriverTech customers to perform all
of the steps of the patented method. Qualcomm Br. 38–
40. DriverTech argues, moreover, that the fact that its
products have substantial non-infringing uses weighs
against inferring that it intended to induce its customers
to engage in an infringing one. These arguments suffer
from the same deficiency. DriverTech is essentially
arguing that, at the pleading stage, R+L must allege facts
that prove all aspects of its claims, or at the very least
make those claims probable. But that is not what is
required. As the Supreme Court has explained, the
plausibility requirement is not akin to a “probability
R+L CARRIERS v. DRIVERTECH 30
requirement at the pleading stage; it simply calls for
enough fact[s] to raise a reasonable expectation that
discovery will reveal” that the defendant is liable for the
misconduct alleged. Twombly, 550 U.S. at 556.
The specification of the ’078 patent makes clear that
the method it claims improves asset utilization and
efficiency by enabling route planning to occur while
shipments are still en route. To achieve these benefits,
bills-of-lading are scanned in the truck cab and transmit-
ted while the truck is en route. Significantly, other than
the method claimed in the ’078 patent, no appellee has
identified a method by which a trucking company could
increase efficiency and improve asset utilization by scan-
ning shipping documents and transmitting them from the
cab of the truck. Common sense indicates that advertis-
ing that your product can be used in conjunction with
dispatch software to improve asset utilization and provide
operational efficiency to the less-than-a-load ship-
ping/trucking industry gives rise to a reasonable inference
that you intend to induce your customers to accomplish
these benefits through utilization of the patented method.
This is sufficient to push the complaint past the line
“between possibility and plausibility.” Twombly, 550 U.S.
at 557.
Because the DriverTech Amended Complaint gives
DriverTech fair notice of what R+L’s claim is and the facts
upon which it rests, and the claim of induced infringe-
ment is plausible on those facts, we conclude that the
district court erred when it dismissed R+L’s DriverTech
Amended Complaint.
b. ACS Amended Complaint
The ACS Amended Complaint explains that ACS ad-
vertises that its business process and information tech-
nology products, including mobile in-cab scanning
31 R+L CARRIERS v. DRIVERTECHCH
products, enable its customers to “reduce costs and im-
prove efficiencies.” ACS Am. Compl. at 4. ACS claims
that use of its Capture ANYWARE product, which enables
in-cab scanning, will “[r]educe shipping costs from agent
office/terminal locations.” Id. at 8. ACS touts the ability
of its products to integrate with “all major dispatch sys-
tem vendors.” Id. at 13. Importantly, one of its custom-
ers, Frozen Food Express, claims that it uses ACS’s
products “to assist in the important pre-planning and
routing of [less-than-a-load] shipments—helping us to
make our [less-than-a-load] operation more productive
and more responsive to our customer needs.” Id. at 15. In
addition, Frozen Food Express believes that use of ACS’s
products “will revolutionize our less-than-truckload (LTL)
operation, enabling us to track not just our trucks, but
also the shipments that they are carrying.” Id. R+L
alleges that ACS became aware of the ’078 patent in
November of 2009 when the complaint was filed and that
the documents quoted in the ACS Amended Complaint
were publicly available after this date. Based on these
facts and ACS’s involvement in tradeshows where it
advertises the benefits and capabilities of its products to
the shipping and trucking industry, R+L alleges that it is
reasonable to infer that ACS intends to induce its custom-
ers to practice the method disclosed in the ’078 patent.
Like DriverTech, ACS argues that these facts do not
give rise to a claim for relief that is plausible on its face.
The district court found that, because ACS’s advertising
does not expressly mention preparing an “advance loading
manifest,”—an essential step of the patented method—it
cannot intentionally induce its customers to practice the
’078 patent. ACS also asserts that the district court
correctly concluded that R+L’s ultimate inferences are
implausible because one cannot deduce an intent to
induce infringement on the basis of touting a product’s
R+L CARRIERS v. DRIVERTECH 32
ability to “improve efficiency,” “provide end-to-end solu-
tion[s],” or “increase productivity.” ACS Br. 41 (quoting
July 15, 2010 Order at 36). These arguments fail for two
reasons.
First, while ACS and the other Appellees are correct
that to prove infringement of a method patent a plaintiff
must show that every step of the method is performed in
the claimed order, nothing in Twombly or Iqbal demands
this level of factual specificity at the pleading stage. Such
a requirement would be dangerously close to requiring a
plaintiff to prove he is entitled to relief at the pleading
stage. At this stage of the litigation a plaintiff is only
required to plead enough facts to enable a court “to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
This determination is, of course, case specific. In
some circumstances, failure to allege facts that plausibly
suggest a specific element or elements of a claim have
been practiced may be fatal in the context of a motion to
dismiss. Or, as with R+L’s contributory infringement
claims, facts may be pled affirmatively which defeat a
claim on its face. But, there is no requirement that the
facts alleged mimic the precise language used in a claim;
what is necessary is that facts, when considered in their
entirety and in context, lead to the common sense conclu-
sion that a patented method is being practiced. 13
13 We agree with R+L that, to the extent the district
court based its assessment of the “reasonableness” of a
given inference of infringement on a narrow construction
of the patent’s claims, claim construction at the pleading
stage—with no claim construction processes under-
taken—was inappropriate. Appellant’s Reply Br. 9–11.
We afford the claims their broadest possible construction
at this stage of the proceedings.
33 R+L CARRIERS v. DRIVERTECHCH
Again like DriverTech, ACS and the district court
analyzed the individual facts in the ACS Amended Com-
plaint in isolation and without reference to the back-
ground of the invention. As noted earlier, one of the most
logical ways to utilize in-cab scanning and transmission of
documents to increase efficiency and help load planning
would be to use the method disclosed in the ’078 patent.
Significantly, Frozen Food Express’ statement that it uses
ACS’s products for “important pre-planning and routing of
[less-than-a-load] shipments” reads much like an admis-
sion that it utilizes ACS’s products in the same way in
which the patented method is employed. ACS Am.
Compl. at 15. After reviewing the ’078 patent and consid-
ering the relatively limited ways in which in-cab scanning
and transmission of shipping documents could be used for
pre-planning and routing of shipments, we conclude that
it is plausible to infer that ACS is intentionally inducing
infringement of the ’078 patent. The district court erred
when it concluded otherwise.
c. PeopleNet Amended Complaint
R+L’s PeopleNet Amended Complaint alleges that,
because it became aware of the ’078 patent in January of
2009 at the latest, it is reasonable to infer that PeopleNet
intends to induce its customers to infringe the ’078 pat-
ent. In support of this allegation, R+L, quoting from
publicly available advertising materials distributed by
PeopleNet, alleges that PeopleNet claims that its mobile
computing products “increase efficiency of automated
paper-based manifest processes. Through PACOS, load
and route information is automatically delivered to the
driver upon arrival through an automated manifest that
is integrated with [the trucking company’s] dispatch
system.” PeopleNet Am. Compl. at 9. Its mobile scanning
and transmission products can be used to “[c]apture bill-
of-lading form information, cargo bar code information or
R+L CARRIERS v. DRIVERTECH 34
other [information] through an in-cab tethered option . . .
.” Id. at 4. In a 2007 press release, Berry & Smith Truck-
ing, a PeopleNet customer, announced that it was “look-
ing to In-Cab scanning to improve driver efficiency by
expediting document flow to and from the vehicle . . . .”
Id. at 11. In the same press release, PeopleNet touted
that “In-Cab Scanning is designed to enable drivers to
scan and transmit critical transportation documents, such
as bills-of-lading . . . immediately from virtually any-
where.” Id. In addition, “[w]ith documents in hand,
dispatch will be able to more quickly and surely dispatch
loads and assign drivers.” Id. Frozen Food Express,
another customer, states that it uses PeopleNet products
in conjunction with ACS products to “assist in the impor-
tant pre-planning and routing of [less-than-a-load] ship-
ments.” Id. at 15. PeopleNet also advertises that Pitt
Ohio Express uses its products, so “[t]he dispatcher [can]
send information to the truck when it is determined
which driver will be loading the order.” Id. at Exhibit J at
8.
In response to R+L’s argument that it has pled suffi-
cient factual material to state a claim for relief that is
plausible on its face, PeopleNet raises the same argu-
ments as DriverTech and ACS. Specifically, it argues
that the PeopleNet Amended Complaint does not raise
facts that establish that it intended to induce its custom-
ers to perform every step of the patented method, and
that it is not reasonable to infer intent to induce from the
general statements it made about the benefits of using its
products. Qualcomm Br. 38–39. For all of the reasons
discussed above, these arguments fail.
The PeopleNet Amended Complaint contains People-
Net’s own statements that show its products can be used
to scan documents and transmit them from in-cab. Peo-
pleNet Amended Complaint at 4. Its products, moreover,
35 R+L CARRIERS v. DRIVERTECHCH
can be used to scan bills-of-lading, Id., and integrated
with dispatch systems so that, “[w]ith documents in hand,
dispatch will be able to more quickly and surely dispatch
loads and assign drivers.” Id. at 9, 15. When viewed in
the context of the invention, these statements give rise to
the reasonable inference that PeopleNet advertises the
benefits of its products to induce its customers to infringe
the ’078 patent. The district erred when it concluded
otherwise.
d. Intermec Amended Complaint
The Intermec Amended Complaint alleges that
Intermec advertises that its mobile computers, scanners,
and software products “enable companies to accurately
track every item throughout their supply chain and
improve efficiency, saving immeasurable hours in cross
docking, yard management and pick-up and delivery
operations.” Intermec Am. Compl. at 3. Intermec also
advertises that its products can be used in “Dis-
patch/Route Optimization,” and “Load Management.” Id.
at 7–8. Use of its scanners and other products “stream-
lin[e] the movement of drivers and shipments, allow[] for
greater utilization of assets and resources. . . . Instantly
available information means faster invoicing, more accu-
rate route planning, scheduling and dispatching and less
time in the cab for drivers.” Id. at 7. In addition, Inter-
mec regularly hosts seminars for existing and potential
customers to demonstrate how its products can be used
and the potential benefits of its products. Id. at 22. For
instance, Intermec advertises that those who attend such
events will “[d]iscover ways to increase your company’s
efficiency and productivity in supply chain activities such
as receiving shipping . . . .” Id. R+L alleges that Intermec
became aware of its patent, at the latest, in July or Au-
gust when it was served with its complaint. Id. at 25. On
the basis of these facts, R+L alleges that it is reasonable
R+L CARRIERS v. DRIVERTECH 36
to infer that Intermec intends to induce its customers to
infringe the ’078 patent.
Intermec first argues that the district court correctly
concluded that R+L’s allegations were insufficient because
general statements advertising the benefits of its products
are insufficient to plausibly plead intent to induce.
Intermec Br. 42–43. For the reasons already discussed,
we disagree.
Intermec next argues that the Amended Complaint
pleads facts which actually establish that Intermec’s
scanners cannot be used to scan bills-of-lading, a critical
step in the patented method. Again, we disagree. Al-
though Intermec argues that its products are meant to be
used on fork lifts and not for the purposes discussed in the
’078 patent, Intermec’s own materials explain that its
products can be used for “pick-up & delivery, in-transit
visibility, home delivery and field service,” graphically
showing a truck operator either picking up or delivering a
package to a resident’s home. See id. at 10. This graphic
makes clear that Intermec’s products can be used, and
plausibly are intended for use, outside of a warehouse. As
a general matter, moreover, we must accept as true
allegations contained in the complaint. Nothing in the
complaint convinces us that we should decline to accept
the truthfulness of R+L’s allegation that, based on Inter-
mec’s advertising materials, Intermec scanners can be
used to scan documents necessary to create loading mani-
fests. For these reasons, we conclude that, the district
court erred in dismissing the Intermec amended com-
plaint.
e. Microdea Amended Complaint
The Microdea Amended Complaint alleges that Mi-
crodea became aware of the ’078 patent, at the latest, in
March of 2009 when it was served with the complaint.
37 R+L CARRIERS v. DRIVERTECHCH
Microdea Am. Compl. at 27. Microdea advertises that its
in-cab scanning software products enable “driver[s] to
scan [Proof of Delivery] and [bills-of-lading] documents
and send them through the existing mobile communica-
tions system directly to your billing center for immediate
processing.” Id. at 4. In addition, Microdea touts that its
products are integrated “with today’s leading Transporta-
tion Management Systems.” Id. at 8. Berry & Smith
Trucking stated that it uses Microdea’s product in con-
junction with PeopleNet’s products to “improve driver
efficiency by expediting document flow to and from the
vehicle . . . .” Id. at 10. A 2007 press release, discussing
Micodea’s In-Cab scanning product, touted it as enabling
“drivers to scan and transmit critical transportation
documents, such as bills of lading . . . immediately from
virtually anywhere.” Id. This ability enables dispatch “to
more quickly and surely dispatch loads and assign driv-
ers.” Id. In addition, Microdea advertises that its prod-
ucts allow Berry & Smith Trucking to “transmit cargo
manifests, billing orders and other documents directly to
drivers on the road.” Id. On the basis of these factual
allegations, R+L alleges that it is reasonable to infer that
Microdea intends to induce its customers to infringe the
’078 patent.
In opposition, Microdea argues that its broad state-
ments about the benefits of its products do not give rise to
the reasonable inference that it intends to induce its
customers to infringe the ’078 patent. And, it argues that,
because the complaint fails to allege that it specifically
instructs its customers to perform each of the steps of the
patented method, it fails to state a claim for relief. We
have already addressed the deficiencies of these argu-
ments; they fare no better here. We conclude, therefore,
that the district court erred when it dismissed the Mi-
crodea Amended Complaint.
R+L CARRIERS v. DRIVERTECH 38
f. Qualcomm Amended Complaint
Finally, R+L alleges that it is reasonable to infer that
Qualcomm intends to induce its customers to infringe the
’078 patent. In support of this inference, the Qualcomm
Amended Complaint alleges that Qualcomm was aware of
the patent as of June 2009, if not earlier, when it was
served with the complaint. Qualcomm Am. Compl. at 28.
The Qualcomm Amended Complaint alleges that Qual-
comm advertises that its mobile computing and communi-
cation products can be used for in-cab scanning. Id. at 10.
Its in-cab scanning products enable “drivers to scan and
transmit documents from the cab of their truck directly
into the customer’s back-office system . . . and help[s]
companies improve back-office efficiency.” Id. at 4–5.
Qualcomm states that its scanning products can be used
to scan “bills of lading and other critical information,
directly resulting in improved productivity and profitabil-
ity.” Id. at 5–6. In addition, Qualcomm advertises that
its mobile computing products in combination with other
software products and services it sells achieve increased
efficiency “[b]y automating functions [such] as load as-
signments . . . .” Id. at 10. Cargo Transporters is cur-
rently utilizing Qualcomm’s mobile computing products
with in-cab scanning in its fleet of trucks. Id. at 14.
Qualcomm asserts that the district court properly
dismissed the Qualcomm Amended Complaint because all
of the statements with which R+L supports its inference
of intent to induce use of the patented method are too
general to support that inference. Qualcomm Br. 38–39.
We have already rejected these arguments. Indeed, the
Qualcomm Amended Complaint contains factual allega-
tions that are even more pointed than many of the others.
Qualcomm’s own words make clear that it advertises that
its products can scan bills-of-lading from the cab of the
truck for transmission to the back office. Qualcomm Am.
39 R+L CARRIERS v. DRIVERTECHCH
Compl. at 4–6. These transmitted documents can then be
utilized to automate load planning. Id. at 10. Only by
ignoring the context in which the ’078 patent’s method is
used could we conclude that it is unreasonable to infer
that Qualcomm intended to induce infringement of the
’078 patent. When properly viewed, the Qualcomm
Amended Complaint states a claim for induced infringe-
ment that is certainly plausible on its face. Accordingly,
the district court erred by dismissing it.
3. Summary
For the reasons discussed above, we are convinced
that all of R+L’s amended complaints contain sufficient
factual allegations to enable this court to reasonably
conclude that each of the Appellees is liable for inducing
infringement of the ’078 patent. This is all that is re-
quired to state a claim for relief that is plausible on its
face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556). Here we are not presented with a case in which
R+L’s complaints merely contain “a formulaic recitation of
a cause of action’s elements.” Twombly, 550 U.S. at 545;
see also Enlink Geoenergy Servs., Inc. v. Jackson & Sons
Drilling & Pump, Inc., No. 09-03524, 2010 WL 1221861,
at *2 (N.D. Cal. Mar. 24, 2010) (dismissing plaintiff’s
complaint for induced infringement because it “merely
repeats the exact language from the statute without
adding any factual allegations.”). Instead, R+L’s
amended complaints contain detailed factual allegations
and reasonable inferences drawn therefrom that plausibly
establish that Appellees are inducing their customers to
infringe the ’078 patent. Accordingly, we reverse the
district court’s judgment dismissing R+L’s claims for
induced infringement against the Appellees.
R+L CARRIERS v. DRIVERTECH 40
D.
Because the district court dismissed all of the
amended complaints against the Appellees, it concluded
that any justiciable controversy between R+L and the
Appellees was mooted. July 15, 2010 Order at 44. In
light of this conclusion, the district court declined to
exercise jurisdiction over R+L’s claims for declaratory
judgments. Id. at 44–45. Because we conclude that the
district court erred by dismissing the amended complaints
in their entirety, the district court must reconsider this
issue in light of our opinion.
III. CONCLUSION
As explained above, we conclude that the district
court committed error by dismissing the amended com-
plaints because they failed to adequately plead direct
infringement. The district court, moreover, erred when it
concluded that, in the alternative, the amended com-
plaints failed to state a claim for induced infringement
against the Appellees. In light of this determination, the
district court must proceed with these actions and revisit
its decision not to exercise jurisdiction over R+L’s claims
for declaratory judgment. With respect to the district
court’s conclusion that the amended complaints failed to
state a claim for contributory infringement against the
Appellees, however, we agree. Accordingly, the district
court’s judgment is affirmed-in-part, reversed-in-part and
remanded.
AFFIRM-IN-PART, REVERSE-IN-PART AND
REMAND
COSTS
Each party shall bear its own costs
United States Court of Appeals
for the Federal Circuit
__________________________
IN RE BILL OF LADING TRANSMISSION AND
PROCESSING SYSTEM PATENT LITIGATION
___________________________
R+L CARRIERS, INC.,
Plaintiff-Appellant,
v.
DRIVERTECH LLC,
Defendant-Appellee,
and
PEOPLENET COMMUNICATIONS CORPORATION,
QUALCOMM, INC., AND MICRODEA, INC.,
Defendants-Appellees,
and
INTERMEC TECHNOLOGIES CORP.,
Defendant-Appellee,
and
AFFILIATED COMPUTER SERVICES, INC.,
Defendant-Appellee,
and
INTERSTATE DISTRIBUTOR COMPANY,
Defendant-Appellee,
R+L CARRIERS v. DRIVERTECH 2
and
PITT OHIO EXPRESS INC. AND BERRY & SMITH
TRUCKING LTD.,
Defendants.
__________________________
2010-1493, -1494, -1495, -1496, 2011-1101, -1102
__________________________
Appeals from the United States District Court for the
Southern District of Ohio in case nos. 09-MD-2050, 09-CV-
0532,-09-CV-0818, 09-CV-0445,-09-CV-0179, 09-CV-0502,
and 09-CV-0472, Senior Judge Sandra S. Beckwith.
__________________________
NEWMAN, Circuit Judge, dissenting in part, concurring in
part.
The court today establishes a new pleading standard for
patent infringement actions, discarding the general national
standard for civil complaints. The court’s new standard
absolves patent infringement pleadings from the uniform
requirements of the Federal Rules and Supreme Court
precedent, and now holds that the Court’s rulings in Bell
Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), do not apply to patent infringe-
ment. The panel majority holds that a sample form, in the
Appendix to the Rules since 1938, established this excep-
tion, dominating the Supreme Court’s reiterations that
“Twombly expounded the pleading standard for all civil
actions.” Iqbal, 556 U.S. at 684. Maj. Op. at 15 (“to the
extent the parties argue that Twombly and its progeny
conflict with the Forms and create differing pleadings
requirements, the Forms control”).
3 R+L CARRIERS v. DRIVERTECH
As illustrated herein, my colleagues hold that pleadings
of direct patent infringement need not provide the informa-
tion otherwise required in all complaints. The court holds
that the complaint need state only the patent number and
date, the general subject matter, and that the marking
requirement was met. My colleagues hold that this terse
revelation applies in patent cases, and negates not only the
Court’s statements in Twombly and Iqbal, but also the vast
body of judicial precedent on the principles of notice plead-
ing.
I cannot agree with the panel majority’s view that the
Forms override the Court’s guidance that: “Determining
whether a complaint states a plausible claim for relief will .
. . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679. Such guidance was as applicable in
1938 as it is today. The plaintiff must, at the very least, in
all cases “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Twombly,
550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). From my colleagues’ contrary ruling, I respectfully
dissent.
I
Complaints for direct infringement are subject to the
pleading standards that apply to all civil actions. The court
holds that Form 18 controls the content of the complaint,
and that the courts have erred, these many years, in requir-
ing more than is set forth in Form 18, as follows:
R+L CARRIERS v. DRIVERTECH 4
Form 18 does not require general or specific facts of in-
fringement, or any other accommodation of complexity.
The purpose of the Federal Rules is to provide a uniform
procedure for all civil actions and proceedings. Fed. Rule
Civ. Proc. 1. The Court has consistently reinforced this
purpose. In Swierkiewicz v. Sorema, 534 U.S. 506, 513
(2002), the Court stated that “Rule 8(a)’s simplified pleading
standard applies to all civil actions, with limited excep-
tions.” These “limited exceptions” focus on Rule 9 and the
Private Securities Litigation Reform Act of 1995. See Iqbal,
556 U.S. at 684 (the argument that Twombly is limited to
the antitrust context is “incompatible with the Federal
Rules of Civil Procedure”). No support can be found for the
panel majority’s theory that all “causes of action for which
there is a sample complaint in the Appendix of Forms,” maj.
op. at 14, are immunized from the general pleading rules, as
established under Rule 8(a) and elaborated by precedential
rulings of the Supreme Court.
Heretofore, this court has been faithful to the criteria
explained in Twombly and Iqbal. Examples abound. See,
e.g., Juniper Networks, Inc. v. Shipley, 643 F.3d 1346, 1350
5 R+L CARRIERS v. DRIVERTECH
(Fed. Cir. 2011) (“To survive a motion to dismiss, a com-
plaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”);
In re BP Lubricants USA Inc., 637 F.3d 1307, 1311 (Fed.
Cir. 2011) (“A plaintiff is not empowered under the Rules ‘to
plead the bare elements of his cause of action . . . and expect
his complaint to survive a motion to dismiss.’”); Totes-
Isotoner Corp. v. United States, 594 F.3d 1346, 1355 (Fed.
Cir. 2010) (“a plaintiff must provide a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests”); McZeal
v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007)
(“The Supreme Court has explained what is necessary for a
claimant to state a claim”); Yip v. Hugs to Go LLC, 377 Fed.
Appx. 973, 975 (Fed. Cir. 2010) (the complaint must “set[ ]
forth the facts that provide a basis to assert that [the defen-
dant] has violated the patent laws by selling the books
covered by the patent and describe[ ] the proof upon which
the plaintiff will rely to support this assertion”). It is ap-
parent that minimalist compliance with Form 18 may not
sufficiently “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
The district courts have responded to Form 18 in irregu-
lar ways. A few district courts have, like the panel majority,
restricted Form 18 by holding that it applies only to direct
infringement. Others have stated that exceptions may be
made for pro se plaintiffs, citing McZeal, 501 F.3d at 1356.
Others have measured the adequacy of the complaint by
whether the information is sufficient to permit a reasoned
response by the defendant. Others have held that Twombly
and Iqbal apply, to the exclusion of Form 18. See, e.g., Rovi
Corp. v. Hulu, LLC, 2012 WL 261982, at *2 (D. Del. Jan. 27,
2012) (holding that Form 18 does not satisfy the pleading
standards, which require that “to survive a motion to dis-
R+L CARRIERS v. DRIVERTECH 6
miss, a plaintiff must plead ‘factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged’”); Illinois Tool Works Inc.
v. Elektromanufaktur Zangenstein Hanauer GmbH & Co.
KgaA, 2011 WL 6002967, at *2-*3 (E.D. Wis. Nov. 30, 2011)
(holding that Form 18 does not control and that the com-
plaint must “contain enough specificity to give the defen-
dant notice of what products or aspects of products allegedly
infringe the plaintiff's patent”); Medsquire LLC v. Spring
Med. Sys. Inc., 2011 WL 4101093, at *1-*2 (S.D.N.Y. Aug.
31, 2011) (the “main issue here is whether a pleading that
follows Form 18 . . . is sufficient in light of the Supreme
Court's decisions in Twombly and Iqbal,” and ruling that to
be sufficient the pleading must contain enough factual
content “that allows the court to draw the reasonable infer-
ence that the defendant is liable for the misconduct al-
leged.”). The D.C. Circuit has recognized that the forms are
to be read along with Supreme Court guidance, and not as a
separate pleading standard. See Aktieselskabet AF 21 v.
Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (stating
that the forms, including Form 18, “illustrate the concept of
fair notice,” and quoting Twombly for the requirement that
“a complaint should simply identify the ‘circumstances,
occurrences, and events’ giving rise to the claim.”).
Some courts have not quibbled about Form 18. See
Clear With Computers, LLC v. Hyundai Motor Am., Inc.,
2010 WL 3155885, *4 (E.D. Tex. Mar. 29, 2010) ("Hyundai's
argument-that the generic pleading of patent cases as
shown in Form 18 is no longer sufficient under Iqbal and
Twombly would render Rule 84 and Form 18 invalid. This
cannot be the case."); Traffic Info., LLC v. YAHOO! Inc.,
2010 WL 2545500, *2 (E.D. Tex. Apr. 13, 2010) (“The Su-
preme Court’s decisions in Twombly and Iqbal have not
affected the adequacy of complying with Form 18.”). In
Realtime Data, LLC v. Stanley, 721 F. Supp.2d 538, 543
7 R+L CARRIERS v. DRIVERTECH
(E.D. Tex. 2010), the district court stated that “Realtime's
allegations of direct infringement fail to adhere to Form 18
in that they do not specifically identify any accused products
or services.” The district court in Enlink Geoenergy Ser-
vices, Inc. v. Jackson & Sons Drilling & Pump, Inc., 2010
WL 1221861, *2 (N.D. Cal. Mar. 24, 2010), explained that
“Form 18 requires a plaintiff to identify the device or
method that is accused of infringement,” and found the
plaintiff’s complaint insufficient.
The genesis of Form 18 does not aid its understanding.
Various sample forms were implemented with the Federal
Rules in 1938, with the statement: “The following forms are
intended for illustration only.” The minutes of an October
1936 meeting of the Advisory Committee on Rules for Civil
Procedure, at the inception of the Federal Rules, contain a
transcript of arguments by the patent bar for special rules
for patent cases; the chairman of the Advisory Committee,
Judge William D. Mitchell, disagreed, stating that “we are
trying to establish uniform rules in equity cases as well as
in law cases.” Minutes at 34-35 (Oct. 1936), at
www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Ov
erview.aspx.
A principal draftsman of the Federal Rules, Chief Judge
Charles E. Clark of the Second Circuit, later explained:
“When the rules were adopted there was considerable
pressure for separate provisions in patent, copyright, and
other allegedly special types of litigation. Such arguments
did not prevail; instead there was adopted a uniform system
for all cases. . . .” Nagler v. Admiral Corp., 248 F.2d 319,
323 (2d Cir. 1957). Wright & Miller, Federal Practice and
Procedure, states that: “The point of Nagler simply is that
the federal rules reject the notion that certain actions
inherently carry a different pleading burden than others.”
R+L CARRIERS v. DRIVERTECH 8
Id. at §1221. Wright & Miller summarize the pleading
requirements as follows:
The requirements for pleading set forth in Federal
Rule 8(a) apply to all actions in the federal courts.
Other than Rule 9, which governs a limited number
of particular matters, and the existence of at least
one federal statute providing a specialized pleading
requirement for certain types of federal cases [the
Private Securities Litigation Reform Act of 1995],
there are no special pleading provisions in the fed-
eral rules for civil cases.
Id. It appears that in 1938 Form 18 (then Form 16) was not
viewed as “special.” Indeed patents, technology, and litiga-
tion were generally less complex.
Recent unrest concerning the forms is reflected in the
Minutes of the Advisory Committee for recent years. The
Minutes for October 2009 state: “The lack of attention over
time is reflected in the persistence from 1938 to 2007 of
forms that set out specific illustrative dates ranging from
1934 to 1936.” The October 2009 Minutes state that the
“Rule 84 Forms attached to the Civil Rules have seemed
troubling for reasons antedating the Twombly and Iqbal
decisions, and independent of them,” and that “the Chief
Judge of the Federal Circuit, for example, has called the
Form 18 complaint for patent infringement an embarrass-
ment.” The Minutes of the March 2010 meeting state:
Rule 84 says the forms “suffice under these rules.”
For the most part, however, the Committee has paid
attention to the Forms only when adding new forms
to illustrate new rules provisions. Looking at the
set as a whole, there are reasons to wonder why
some topics are included, while others are omitted.
9 R+L CARRIERS v. DRIVERTECH
Looking at particular forms raises questions
whether they are useful. The pleading forms in par-
ticular seem questionable. The pleading forms were
obviously important in 1938. The adoption of notice
pleading, a concept not easily expressed in words,
required that the Committee paint pictures in the
guise of Forms to illustrate the meaning of Rule
8(a)(2). That need has long since been served.
The December 2011 Report of the Advisory Committee
states that the “benign neglect that has attended most of
the Rule 84 forms may rest in part on their general obscu-
rity,” and that: “The Form 18 complaint for patent in-
fringement has created particular difficulties for lower
courts.” Report at 13 (Dec. 2011). The report states that a
proposed, “more detailed substitute,” “echoes the common
lament that the Form 18 model of a complaint for patent
infringement is woefully inadequate.” Id. at 38. It appears
that the forms are under review.
Meanwhile, the district court herein held the complaint
inadequate because it did not state facts adequate to show
infringement. My colleagues reverse, and hold that direct
infringement need not be pled with any more support than
is set forth in Form 18. My colleagues hold that it was
incorrect for the district court to “require a plaintiff to plead
facts establishing that each element of an asserted claims is
met,” maj. op. at 16, and that “a plaintiff need not even
identify which claims it asserts are being infringed.” Id.
My colleagues hold that in view of Form 18 the Court’s
rulings in Twombly and Iqbal on pleading requirements do
not apply, and that Form 18 absolved the plaintiff of any
obligation to inform the accused infringer of sufficient facts
to permit meaningful response. My colleagues hold that the
Court’s remonstrances that pleading content should be
viewed in the context of the asserted wrong, Iqbal, 556 U.S.
R+L CARRIERS v. DRIVERTECH 10
at 679, and other guidance, are not only irrelevant, but
contrary to law, holding that Congress required dominance
by the Rules, including the Forms, over refinements of
judicial interpretation.
The panel majority quotes, in support of its position that
complaints need not be heavy on detail, the Court’s state-
ment in Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011),
that a complaint “generally requires only a plausible ‘short
plain’ statement of the plaintiff’s claim.” However, Skinner
did not elevate the Forms over judicial rulings. Plaintiff
Skinner was a prisoner sentenced to death, who sought
DNA testing in a §1983 proceeding; the Court held that the
case was improperly dismissed on the pleadings. My col-
leagues also cite Matrixx Initiatives, Inc. v. Siracusano, 131
S. Ct. 1309, 1323 (2011), a class action that turned on the
materiality of asserted misrepresentations or omissions,
where the Court held that the facts of the asserted misrep-
resentations and omissions as stated in the pleadings were
sufficient to survive dismissal under Rule 12(b). These
cases provide no support for the thesis that the pleading
requirements established by the Supreme Court are over-
ridden by Form 18.
Diverging from this insistence that a pleading of in-
fringement requires no details, the panel majority holds
that the claims presented by R+L Carriers are for indirect
infringement, that is, induced and contributory infringe-
ment, and thus are immune from Form 18. My colleagues
state that this form of infringement is indeed subject to
Twombly and Iqbal, although recognizing that “a claim of
indirect infringement can only arise where there is direct
infringement and the district court concluded that no ade-
quate claim of direct infringement had been pled.” Maj. Op.
at 8. The majority then evaluates the charges of direct and
indirect infringement, in the same count of the complaint,
11 R+L CARRIERS v. DRIVERTECH
under entirely separate pleading standards. I have come
upon no support for such a distinction.
II
The complaints contain detailed information, each com-
plaint over one hundred pages in length, describing the
products offered and sold by each of the defendants for use
in the trucking industry. The complaints provide the defen-
dants with information as to the patents and specific claims
that are allegedly being infringed, and identify the activities
alleged to constitute infringement, direct and indirect. On
applying the pleading standards of Twombly and Iqbal, I
conclude that the pleading requirements of direct and
indirect infringement are met. To this extent, I concur in
the decision of the panel majority.