K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
K-TECH TELECOMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
TIME WARNER CABLE, INC.,
Defendant-Appellee.
______________________
2012-1425
______________________
Appeal from the United States District Court for the
Central District of California in No. 11-CV-9373, Judge R.
Gary Klausner.
------------------
K-TECH TELECOMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
DIRECTV,
Defendant-Appellee.
______________________
2012-1446
______________________
2 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
Appeal from the United States District Court for the
Central District of California in No. 11-CV-9370, Judge R.
Gary Klausner.
______________________
Decided: April 18, 2013
______________________
PATRICK F. BRIGHT, Wagner, Anderson & Bright, P.C.,
of Glendale, California, argued for plaintiff-appellant.
DAVID S. BENYACAR, Kaye Scholer, LLP, of New York,
New York, argued for defendant-appellee, Time Warner
Cable, Inc. With him on the brief was DANIEL L. REISNER.
DARIN W. SNYDER, O’Melveny & Myers, LLP, of San
Francisco, California, argued for the defendant-appellee,
DirecTV. With him on the brief was RYAN K. YAGURA, of
Los Angeles, California.
______________________
Before MOORE, O'MALLEY, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Concurring opinion filed by Circuit Judge WALLACH.
O’MALLEY, Circuit Judge.
K-Tech Telecommunications, Inc. (“K-Tech”) appeals
the district court’s orders in K Tech Telecommunications,
Inc. v. Time Warner Cable, Inc., CV11-09373 (May 9, 2012
C.D. Cal) and K Tech Telecommunications, Inc. v. Di-
recTV, CV11-09370 (May 9, 2012 C.D. Cal) dismissing K-
Tech’s First Amended Complaints for patent infringement
against Time Warner Cable, Inc. (“TWC”) and DirecTV for
failure to state a claim upon which relief can be granted.
Given the substantial factual overlap between the two
actions, we consolidated the appeals for the purposes of
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 3
oral argument and issue our ruling in a single opinion.
We find that the district court applied the incorrect
standard in evaluating the adequacy of K-Tech’s com-
plaints. District courts must evaluate complaints alleging
direct infringement by reference to Form 18 of the Appen-
dix of Forms to the Federal Rules of Civil Procedure
(“Form 18”). Applying that standard to the amended
complaints at issue in these appeals, we reverse the
judgments dismissing these actions with prejudice and
remand for further proceedings.
BACKGROUND
A. Procedural History
On November 9, 2011, K-Tech filed a complaint for
patent infringement against DirecTV in the United States
District Court for the Central District of California. On
the same day, K-Tech filed a similar action against TWC.
These complaints named four patents, U.S. Patent
6,785,903 (the “’903 patent”); U.S. Patent 7,487,533 (the
“’533 patent”); U.S. Patent 7,761,893 (the “’893 patent”);
and U.S. Patent 7,984,469 (the “’469 patent”) (collectively,
the “K-Tech patents”) and charged DirecTV and TWC
with direct infringement of each. On November 28, 2011,
following K-Tech’s request, the action against TWC was
transferred to Judge R. Gary Klausner, the judge as-
signed to the lower numbered DirecTV action.
On January 5, 2012, DirecTV and TWC each moved to
dismiss the original complaints under Federal Rule of
Civil Procedure 12(b)(6), alleging that the respective
complaints lacked sufficient factual specificity to state a
cause of action for direct patent infringement. At K-
Tech’s request, the district court consolidated briefing
with respect to the defendants’ motions to dismiss. On
February 21, 2012, the district court dismissed both
complaints in substantially similar orders and granted K-
Tech leave to amend, stating in pertinent part as follows:
4 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
Based solely on this evidence and without any ad-
ditional factual allegations, Plaintiff seems to
suggest that Defendant must operate some prod-
uct or process in a manner that infringes some of
the Asserted Patents, because Defendant is able
to achieve the same end-result as that contem-
plated by the Asserted Patents. Although Plain-
tiff strongly believes that Defendant “must” be
infringing the Asserted Patents, Plaintiff fails to
explain the basis of this belief. Plaintiff does not
explain why it believes that Defendant is utilizing
the methods and products protected by the As-
serted Patents to update the digital signals it re-
ceives rather than using other noninfringing
methods and products.
TWC J.A. 4; DirecTV J.A. 3-4.
On February 28, 2012, K-Tech filed First Amended
Complaints against TWC and DirecTV. On March 30,
2012, both TWC and DirecTV moved to dismiss the re-
spective First Amended Complaints, again under Rule
12(b)(6). On May 9, 2012, the District Court dismissed
each of the First Amended Complaints, ruling as follows:
On February 21, 2012, the Court granted Defend-
ant’s Motion to Dismiss Plaintiff’s Complaint for
patent infringement on the grounds that Plaintiff
failed to allege sufficient factual detail regarding
Defendant’s accused product and the manner in
which it is infringing Plaintiff’s patents. The
First Amended Complaint (“FAC”) Plaintiff filed
on February 28, 2012 does not cure the deficien-
cies identified in the Court’s prior order. Plaintiff
has failed to allege facts sufficient to state a plau-
sible claim for patent infringement under the
standards articulated in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iq-
bal, 129 S. Ct. 1937 (2009). Therefore, for the rea-
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 5
sons stated in the Court’s February 21st Order,
the Court GRANTS Defendant’s Motion to Dis-
miss Plaintiff’s FAC.
TWC J.A. 1; DirecTV J.A. 1.
K-Tech timely filed its Notice of Appeal on May 25,
2012. We issued our decision in R+L Carriers, Inc. v.
DriverTech LLC (In re Bill of Lading Transmission &
Processing System Patent Litigation), 681 F.3d 1323 (Fed.
Cir. 2012), on June 7, 2012.
B. Patented Technology
K-Tech describes its patents as identifying systems
and methods for modifying a major channel number, a
minor channel number, and/or a carrier frequency to
identify a television program. The following claims were
specifically identified in each of the First Amended Com-
plaints:
Claim 24 of the ’903 patent:
A method of translating a digital television signal,
comprising the steps of:
receiving a first digital television signal
and generating a digital transport stream
from the first digital television signal, the
digital transport stream including original
PSIP data having RX channel data;
updating the original PSIP data in the
digital transport stream by replacing the
RX channel data with TX channel data;
and
converting the digital transport stream
having the updated PSIP data into a sec-
ond digital television signal,
wherein the RX channel data is associated
with the first digital television signal and
6 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
includes at least one of a major channel
number, a minor channel number, and a
carrier frequency, and the TX channel da-
ta is associated with the second digital
television signal and includes at least one
of an updated major channel number, an
updated minor channel number, and an
updated carrier frequency.
Claim 13 of the ’533 patent:
A method of translating, comprising
separating a first program information ta-
ble from video data and audio data con-
tained in a first digital transport stream,
the first program information table con-
taining one or more attributes for a virtual
channel of a digital television signal car-
ried in the first digital transport stream;
forming a second program information ta-
ble having one or both of a new carrier
frequency and new virtual channel num-
ber;
combining the second program infor-
mation table with the separated video and
audio data to form a second digital
transport stream;
modulating data from the second digital
transport stream; and
generating a second digital television RF
signal using the modulated data from the
second digital transport stream.
Claim 1 of the ’893 patent:
A system for translating a first digital transport
stream containing one or more digital television
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 7
programs carried in the first digital transport
stream, comprising:
a program information update unit, the
program information update unit supple-
menting one or more attributes for a vir-
tual channel of a digital television
program carried in the first digital
transport stream; and
a multiplexor, the multiplexor combining
the one or more attributes supplemented
by the program information update unit
and the first digital television program
carried on the first digital transport
stream to form a second digital transport
stream.
Claim 5 of the ’469 patent:
A method of translating, comprising:
receiving an ATSC digital television signal
over cable;
converting the ATSC digital television
signal into a first digital transport stream,
the first digital transport stream contain-
ing video and audio data of a program and
a program information table, the program
information table having a major channel
number and a minor channel number;
generating a new program information ta-
ble containing a new channel number, the
new channel number identifying the pro-
gram represented by the major channel
number and the minor channel number;
and combining the video and audio data
with the new program information table.
8 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
In its complaints, K-Tech alleges that TWC and Di-
recTV infringe the K-Tech patents by “making, selling,
and offering to sell, in this judicial district, systems and
methods for modifying a major channel number, a minor
channel number, and/or a carrier frequency to identify a
television program . . . .” DirecTV J.A. 55; TWC J.A. 55-
56. According to K-Tech, the Federal Communications
Commission requires that all digital television signals in
the U.S. follow the Advanced Television Systems Commit-
tee (“ATSC”) specifications, which in turn require compli-
ance with Program and System Information Protocol
(“PSIP”) specifications that define the information includ-
ed in a digital television signal (e.g., major channel num-
ber, minor channel number, and a carrier frequency). K-
Tech identifies broadcast networks, such as CBS, ABC,
NBC, and FOX, that transmit digital television signals in
accordance with these protocols. Because TWC and
DirecTV identify programs broadcast over their cable or
satellite systems with a channel number, K-Tech con-
tends that TWC and DirecTV utilize the methods and
systems protected by the K-Tech patents to update the
digital signals they receive.
DISCUSSION
On appeal, K-Tech contends that its First Amended
Complaints comply with Form 18 and that the district
court applied the incorrect standard in analyzing the
sufficiency of each complaint. DirecTV and TWC argue in
response that the sufficiency of a complaint with respect
to Form 18 must be interpreted consistently with the
Supreme Court’s decisions in Iqbal and Twombly, as well
as Ninth Circuit law. The defendants also assert that the
respective First Amended Complaints fail to meet either
the plain language of Form 18 or the form interpreted
through the lens of Twombly and Iqbal.
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 9
A. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) “generally re-
quires only a plausible ‘short and 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.” R+L
Carriers, 681 F.3d at 1331 (citing McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007); C&F
Packing Co. v. IBP, Inc., 224 F.3d 1296, 1306 (Fed. Cir.
2000)). The Ninth Circuit reviews de novo challenges to a
dismissal for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Livid Holdings Ltd. v. Salo-
man Smith Barney, Inc., 403 F.3d 1050, 1055 (9th Cir.
2005). The court’s review is generally limited to the face
of the complaint, materials incorporated into the com-
plaint by reference, and matters of judicial notice. Metzler
Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049,
1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007)).
In undertaking this review, the court “accept[s] the
plaintiffs’ allegations as true and construe[s] them in the
light most favorable to plaintiffs.” Gompper v. VISX, Inc.,
298 F.3d 893, 895 (9th Cir. 2002). “[O]nly pleaded facts,
as opposed to legal conclusions, are entitled to assumption
of the truth,” however. United States v. Corinthian Col-
leges, 655 F.3d 984, 991 (9th Cir. 2011). In addition,
“conclusory statements . . . are not entitled to the pre-
sumption of truth.” Chavez v. United States, 683 F.3d
1102, 1108 (9th Cir. 2012). The court will hold a dismis-
sal inappropriate unless the complaint fails to “state a
claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). The plausibility
standard set forth in Twombly is met when “the plaintiff
pleads factual content that allows the court to draw the
10 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556); see also 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 (citation and internal quotation marks omitted)).
“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 expe-
rience and common sense.” Iqbal, 556 U.S. at 679 (cita-
tion omitted).
B. Application of Form 18 to the K-Tech Complaints
Form 18 sets forth a sample complaint for direct pa-
tent infringement and 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.
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed.
Cir. 2007). We recently had occasion to address the
interaction between Form 18 and general pleading stand-
ards in R+L Carriers. 681 F.3d 1323. As we explained
there, 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.’” Id. at 1334 (quoting Fed. R. Civ. P. 84).
Rule 84, combined with guidance from the Advisory
Committee Notes to the 1946 amendment of Rule 84,
makes clear that a proper use of a form contained in the
Appendix of Forms effectively immunizes a claimant from
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 11
attack regarding the sufficiency of the pleading. Id. at
1334.
Any criticism we may have regarding the sufficiency
of the forms themselves is strictly proscribed by Supreme
Court precedent. See Leatherman v. Tarrant Cnty. Nar-
cotics Intelligence & Coordination Unit, 507 U.S. 163, 168
(1993) (Any changes to the Federal Rules of Civil Proce-
dure “must be obtained by the process of amending the
Federal Rules, and not by judicial interpretation.”); see
also Twombly, 550 U.S. at 569 n.14 (acknowledging that
altering the Federal Rules of Civil Procedure cannot be
accomplished by judicial interpretation). And, as we
made clear in R+L Carriers, to the extent any conflict
exists between Twombly (and its progeny) and the Forms
regarding pleadings requirements, the Forms control. 1
R+L Carriers, 681 F.3d at 1334 (citing McZeal, 501 F.3d
at 1360 (Dyk, J., concurring in part and dissenting in
part) (acknowledging that, while the bare allegations
contemplated by Form 18 appear deficient under
Twombly, we are “required to find that a bare allegation
of literal infringement in accordance with Form [18]
would be sufficient under Rule 8 to state a claim”)); see
1 TWC and DirecTV suggest that our analysis of
what Form 18 requires should differ depending on the
regional circuit from which a case arises. We disagree.
While we reviewed the district court's decision to dismiss
the complaint in R+L Carriers under Sixth Circuit law,
our decision regarding the requirements of Form 18 and
its relationship to the pleading standards set forth in
Twombly and Iqbal was dictated by Supreme Court
precedent. R+L Carriers, 681 F.3d 1323. Our analysis is
no different where the case comes to us from the Ninth
Circuit. Form 18 is a national form, and any argument
that we should interpret it differently here than we did in
R+L Carriers is without merit.
12 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
also Superior Indus., LLC v. Thor Global Enters., 700
F.3d 1287, 1295 (Fed. Cir. 2012) (“In a complaint for
patent infringement under § 271(a), Form 18 of the Fed-
eral Rules of Civil Procedure provides the pleading stand-
ard. . . . Although the parties do not discuss the Form 18
pleading standard, this court acknowledges that standard
to review the dismissal.”).
That Form 18 would control in the event of a conflict
between the form and Twombly and Iqbal does not sug-
gest, however, that we should seek to create conflict
where none exists. A complaint containing just enough
information to satisfy a governing form may well be
sufficient under Twombly and Iqbal. R+L Carriers, 681
F.3d at 1334 n.6. “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 allegedly inadequate, and the phrasing of
the complaint being challenged.” Id. (citing 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”)). And we think it clear that an
implausible claim for patent infringement rightly should
be dismissed.
Form 18 in no way relaxes the clear principle of Rule
8, that a potential infringer be placed on notice of what
activity or device is being accused of infringement. As we
stated in McZeal:
It logically follows that a patentee need only plead
facts sufficient to place the alleged infringer on
notice as to what he must defend. See Bell Atlan-
tic, 127 S. Ct. at 1971 n. 10 (stating “[a] defendant
wishing to prepare an answer in the simple fact
pattern laid out in Form 9 [in the Federal Rules of
Civil Procedure] would know what to answer; a
defendant seeking to respond to plaintiffs’ conclu-
sory allegations . . . would have little idea where
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 13
to begin.”). Thus, a plaintiff in a patent infringe-
ment suit is not required to specifically include
each element of the claims of the asserted patent.
See, e.g., Phonometrics, Inc. v. Hospitality Fran-
chise Sys., Inc., 203 F.3d 790, 794 (Fed. Cir. 2000).
501 F.3d 1354, 1357 (Fed. Cir. 2007) (alterations in origi-
nal). That said, however, it is clear the district court
applied the wrong standard to K-Tech’s complaints in
requiring that a plaintiff preemptively identify and rebut
potential non-infringing alternatives to practicing the
claims of an asserted patent. See, e.g., TWC J.A. 4
(“Plaintiff does not explain why it believes that Defendant
is utilizing the methods and products protected by the
Asserted Patents to update the digital signals it receives,
rather than using other non-infringing methods and
products.”). Form 18 includes no indication that a patent
holder must prospectively anticipate such noninfringe-
ment arguments. 2 For this reason alone, it is clear the
rationale employed by the district court when dismissing
K-Tech’s actions was erroneous. We thus turn to the
question of whether, under an alternate, appropriate
rationale, we may otherwise affirm the district court’s
judgments. See Hydril Co. LP v. Grant Prideco LP, 474
F.3d 1344, 1351 (Fed. Cir. 2007) (noting that it is within
this court’s discretion to “affirm a district court judgment
2 TWC and DirecTV each challenge the sufficiency
of K-Tech's pre-suit investigation and K-Tech’s knowledge
of the accused systems. Satisfaction of Form 18 does not
guarantee compliance with Rule 11 of the Federal Rules
of Civil Procedure. That a complaint alleges a plausible
claim for patent infringement on its face and satisfies
Form 18 does not immunize a plaintiff who fails to identi-
fy easily ascertainable evidence of noninfringement
through appropriate pre-suit investigation. See, e.g., R+L
Carriers, Inc. v. Pitt Ohio Express, Inc., 2013 U.S. App.
LEXIS 2541 (Fed. Cir. Feb. 6, 2013).
14 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
on any ground shown by the record, even though that was
not the basis of the district court’s decision”). We cannot.
C. Satisfaction of Form 18
DirecTV and TWC argue that, even assuming Form
18 is the governing standard by which K-Tech’s com-
plaints are to be judged and the trial court did not employ
that talisman, K-Tech failed in its obligations under Form
18 by not identifying an infringing device or adequately
connecting any alleged activity to the asserted patents. 3
K-Tech responds, in pertinent part, that it included in
each of the First Amended Complaints a statement that
the defendants have been infringing by making, selling,
and using methods or systems embodying the patent. To
determine who is correct on this point, we turn to the
specificity required by Form 18. R+L Carriers, 681 F.3d
at 1334.
Paragraph 3 of Form 18 requires, by way of an exem-
plary invention, a statement that “[t]he defendant has
infringed and is still infringing the Letters Patent by
making, selling, and using electric motors that embody
the patented invention, and the defendant will continue to
do so unless enjoined by this court.” On appeal, K-Tech
argues that the statements addressed below satisfy Form
18 and are sufficient to allege direct infringement of the
K-Tech patents.
3 Neither party contests—and we find no ques-
tion—that K-Tech’s First Amended Complaints contain
an allegation of jurisdiction, an assertion of ownership, a
demand for an injunction and damages, and written
notice of infringement by way of the complaints (except to
the extent that the defendants contend that the com-
plaints insufficiently describe the allegedly infringing
activity).
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 15
In paragraph 7 of each of the First Amended Com-
plaints, K-Tech describes its patents as “identify[ing]
systems and methods for modifying a major channel
number, a minor channel number and/or a carrier fre-
quency to identify a television program” and states that
TWC and DirecTV infringe the K-Tech patents by doing
the same. DirecTV J.A. 57; TWC J.A. 57. The First
Amended Complaints describe a regulatory scheme in
which networks are required to broadcast digital televi-
sion signals in compliance with ATSC specifications,
which in turn require compliance with PSIP specifications
that define what information must be included in a digital
television signal (including, e.g., major channel number,
minor channel number, and a carrier frequency). DirecTV
J.A. 57; TWC J.A. 57. K-Tech then references a DirecTV
patent that allegedly describes how DirecTV receives its
local broadcast signals. DirecTV J.A. 58-59. And, K-Tech
references pre-suit communications with DirecTV in
which K-Tech allegedly explained its infringement allega-
tions and DirecTV rejected them. DirecTV J.A. 57-58.
With respect to TWC, K-Tech provides an allegedly in-
fringing example of a television program which shows one
channel assignment when received via an over-the-air
digital signal and another—i.e., modified—channel as-
signment when received via TWC broadcast. TWC J.A.
57-58. Based on these facts, K-Tech claims:
In order to broadcast programs in a cable or satel-
lite system, companies, such as [DirecTV and
TWC], must identify television programs with a
channel number so that users can select the pro-
grams. These companies may also be using the
carrier frequency to identify the programs. On in-
formation and belief, this infringement will con-
tinue unless enjoined by this court.
Id. Thus:
16 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
On information and belief, Plaintiff believes that
[DirecTV and TWC are] utilizing the methods and
systems protected by the K-Tech patents to up-
date the digital signals it receives, rather than us-
ing other non-infringing methods and systems,
because this receiving of digital television signals
and channel reassignment appears to be covered
by the K-Tech patents, raising an inference of in-
fringement, which constitutes probable cause for
the case, even though [DirecTV and TWC hold] in
confidence the details of its channel reassignment
methods/systems.
DirecTV J.A. 59; TWC J.A. 58.
DirecTV and TWC contend that these types of allega-
tions are insufficient under Form 18. They argue that
R+L Carriers reads Form 18 to require identification of
the allegedly infringing device. According to the defend-
ants, K-Tech’s failure to identify—by name, model num-
ber, or otherwise—specific devices or products that
infringe the K-Tech patents is fatal to its complaints.
Both TWC and DirecTV point to a complaint filed by K-
Tech against Blonder Tongue Laboratories, Inc., in which
K-Tech listed accused products by model number and tied
each to elements of the claimed inventions as evidence.
Appellees argue that the Blonder Tongue complaint
evidences that K-Tech was aware that its obligations
under Form 18 require that level of detail.
K-Tech responds by arguing that both DirecTV and
TWC operate in secrecy and that K-Tech is unable to
ascertain exactly where the infringement is occurring or
what devices are used to infringe. K-Tech contends that
fair inferences can be drawn from allegations in the
complaints regarding the nature of defendants’ business-
es, the industry standards to which they are required to
adhere, and the output signals produced. This, K-Tech
argues, is enough to withstand dismissal.
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 17
We do not read Form 18—or R+L Carriers—to require
that a plaintiff identify an accused device by name. That
K-Tech cannot point to the specific device or product
within TWC’s or DirecTV’s systems that translates the
digital television signals each receives—especially when
the operation of those systems is not ascertainable with-
out discovery—should not bar K-Tech’s filing of a com-
plaint. A defendant cannot shield itself from a complaint
for direct infringement by operating in such secrecy that
the filing of a complaint itself is impossible. Nor is a
defendant immune from a direct infringement claim
because he does not make a “device” but, rather, infringes
through a system or method.
The touchstones of an appropriate analysis under
Form 18 are notice and facial plausibility. See R+L
Carriers, 681 F.3d at 1334; McZeal, 501 F.3d at 1357.
While these requirements serve as a bar against frivolous
pleading, it is not an extraordinarily high one. The ade-
quacy of the facts pled depends on the breadth and com-
plexity of both the asserted patent and the accused
product or system and on the nature of the defendant’s
business activities. Compare Patent Harbor, LLC v.
DreamWorks Animation SKG, Inc., 2012 U.S. Dist. LEXIS
114199, at *13-15 (E.D. Tex. July 27, 2012) (stating that
“[t]he required detail level of the description is dictated by
the facts and circumstances surrounding the action” and
finding that an identification of a general category of
products as well as specific features is sufficient to satisfy
Form 18), and Select Retrieval, LLC v. L. L. Bean, Inc.,
2012 U.S. Dist. LEXIS 156004 (D. Me. Oct. 31, 2012)
(finding the identification of an accused website sufficient
to provide notice under Form 18), with Prism Techs., LLC
v. AT&T Mobility, LLC, 2012 U.S. Dist. LEXIS 126630 (D.
Neb. Sept. 6, 2012) (finding that allegation of infringe-
ment by AT&T against “various wireless products and
data services” was too broad to satisfy the requirements of
Form 18).
18 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
Here, we find that K-Tech’s amended complaints in
both actions satisfy these standards. DirecTV and TWC
know what K-Tech’s patents claim, and they know what
K-Tech asserts their systems do, and why. K-Tech has
alleged that DirecTV and TWC must and do modify or
“translate” digital signals they receive, and it has alleged
that they do so using K-Tech’s patented methods and
systems. We find these allegations adequate to satisfy
Form 18 and, thus, to satisfy the pleading standards that
govern these actions.
CONCLUSION
We reverse the district court’s judgments in K Tech
Telecommunications, Inc. v. Time Warner Cable, Inc.,
CV11-09373 (May 9, 2012 C.D. Cal) and K Tech Telecom-
munications, Inc. v. DirecTV, CV11-09370 (May 9, 2012
C.D. Cal) dismissing K-Tech’s First Amended Complaints
and remand for further proceedings in these cases.
REVERSED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
K-TECH TELECOMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
TIME WARNER CABLE, INC.,
Defendant-Appellee.
______________________
2012-1425
______________________
Appeal from the United States District Court for the
Central District of California in No. 11-CV-9373, Judge R.
Gary Klausner.
------------------
K-TECH TELECOMMUNICATIONS, INC.,
Plaintiff-Appellant,
v.
DIRECTV,
Defendant-Appellee.
______________________
2012-1446
______________________
2 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
Appeal from the United States District Court for the
Central District of California in No. 11-CV-9370, Judge R.
Gary Klausner.
______________________
WALLACH, Circuit Judge, Concurring.
I agree with the outcome reached by the majority, and
with its context-driven analysis of Form 18 compliance.
However, I disagree with the dictum that “the Forms
control” over the Supreme Court’s plausibility standard
set forth in Iqbal and Twombly. 1 Majority Op. at 10.
Rather, plausibility is always required to survive a Rule
12(b)(6) motion. The significance of Form 18 is that,
pursuant to Rule 84, it illustrates the “simplicity and
1 This case does not present a conflict between Form
18 and plausibility. See Majority Op. at 16–17 (holding K-
Tech’s complaints satisfy the standards of notice and
facial plausibility). R+L Carriers, from which “the Forms
control” language was drawn, similarly did not involve
any such conflict. Compare R+L Carriers, 681 F.3d at
1335 (the allegations of direct infringement satisfy Form
18), with id. at 1351 (Newman, J. dissenting in part,
concurring in part) (the same allegations satisfy the
Twombly and Iqbal standard); see also McZeal, 501 F.3d
at 1358 (“McZeal met the low bar for pro se litigants to
avoid dismissal on the basis of [Rule] 12(b)(6)”). Thus,
stating that “the Forms control” in the event of a conflict
between Form 18 and plausibility is dictum. In re
McGrew, 120 F.3d 1236, 1238 (Fed. Cir. 1997) (“[D]ictum
consists, inter alia, of statements in judicial opinions upon
a point or points not necessary to the decision of the
case.”) Such dictum “‘is not authoritative,’” but rather “‘is
the part of an opinion that a later court . . . is free to
reject.’” Id. (quoting United States v. Crawley, 837 F.2d
291, 292 (7th Cir. 1988)).
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 3
brevity” adequate to state a plausible claim for relief in
cases alleging direct patent infringement.
The question presented in this case is whether K-
Tech’s allegations are adequate under Rule 8(a). If so,
they survive a Rule 12(b)(6) motion; if not, the complaints
must be dismissed. The Supreme Court has interpreted
Rule 8(a) to require “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). This standard “governs the pleading standard ‘in
all civil actions and proceedings in the United States
district courts.’” Id. (quoting Rule 1) (emphasis added).
Form 18 provides a sample complaint for patent in-
fringement, and Rule 84 “makes clear that a proper use of
[Form 18] . . . effectively immunizes a claimant from
attack regarding the sufficiency of the pleading.” Majority
Op. at 9–10 (emphasis added). As the majority rightly
points out, Rule 84 is binding on this court to the same
extent as Rule 8(a).
Thus, this court is bound by Iqbal and Twombly (in-
terpreting Rule 8(a)) and by Rule 84. To the extent possi-
ble, these standards must be harmonized. Fortunately,
Twombly suggests a path to reconciliation. Twombly
expressly recognized the adequacy of the allegations in
former Form 9. Twombly, 550 U.S. at 565 n.10 (citing
Form 9, Complaint for Negligence, modified and renum-
bered as Form 11) (hereinafter “Form 9”)); see also Hamil-
ton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010) (considering
Form 13 in determining whether the Iqbal and Twombly
standard had been met). Comparison of Form 9 with
Form 18 shows each alleges as much “factual matter” as
the other. Sample Form 9 provided, in relevant part: “On
June 1, 1936, in a public highway called Boylston Street
in Boston, Massachusetts, defendant negligently drove a
motor vehicle against plaintiff who was then crossing said
highway.” Form 9 alleges some facts, such as “that the
defendant struck the plaintiff with his car while plaintiff
4 K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE
was crossing a particular highway at a specified date and
time . . . .” Twombly, 550 U.S. at 565 n.10. Nonetheless, it
contains “conclusory allegations” in equal measure, alleg-
ing simply that the defendant’s conduct was negligent.
See id. at 557 (instructing that “a conclusory allegation”
alone is inadequate to state a claim). Similarly, Form 18
contains factual allegations, like the issuance of a valid
patent, plaintiff’s ownership of that patent, and that the
defendant is “making, selling, and using electric motors
that embody the patented invention.” Although the alle-
gation that defendant “is infringing” seems to be a legal
conclusion of the type we are instructed to disregard
under Twombly, it is no more conclusory than Form 9’s
allegation of “negligence.” Following this guidance, the
Iqbal and Twombly standard and Rule 84 may both be
given effect by holding that plausible allegations parallel-
ing Form 18 are adequate to satisfy Rule 8(a).
Because these standards are reconcilable, it is unnec-
essary for the majority to pronounce that “the Forms
control” over plausibility. Indeed, the remainder of the
majority’s opinion suggests the opposite, and expressly
states that plausibility is required for Form 18 compli-
ance. Majority Op. at 11 (holding it “clear that an implau-
sible claim for patent infringement rightly should be
dismissed”); Majority Op. at 16 (listing plausibility as one
of the “touchstones” of an appropriate Form 18 analysis).
Moreover, the majority’s analysis of Form 18 compliance
is just the sort of “context-specific” analysis required by
the plausibility standard. Iqbal, 556 U.S. at 679(“[D]etermining 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 expe-
rience and common sense.”). The majority states the
adequacy of facts pled under Form 18 “depends on the
breadth and complexity of both the asserted patent and
the accused product or system and on the nature of the
K-TECH TELECOMMUNICATIONS v. TIME WARNER CABLE 5
defendant’s business activities.” 2 Majority Op. at 16–17
(collecting cases where district courts have applied such a
context-sensitive approach). This analysis does not square
with the dictum that “the Forms control,” but is entirely
consistent with the framework presented by this concur-
ring opinion; that plausible allegations conforming to
Form 18 are adequate to satisfy the requisite Iqbal and
Twombly standard.
2 It is unclear what the majority means when it
says “the Forms control.” Even according to the majority,
strict replication of Form 18 is neither required nor suffi-
cient to satisfy Rule 12(b)(6). For instance, K-Tech’s
complaints are found adequate under Form 18 although
they do not allege a device analogous to “electric motors”
nor that the patentee “owned the patents throughout the
period of the defendant’s infringing acts . . . .” See Form
18 (including such allegations). Moreover, the majority
indicates that a complaint duplicating the allegations in
Form 18 would be inadequate if implausible. See Majority
Op. at 11 (“an implausible claim for patent infringement
rightly should be dismissed.”).