Form 18To Blawgletter's eye, a complaint that alleges patent infringement bears itself with a certain elegance. Such a pleading often runs but several pages, and in substance it states that the Bad Guy defendant does some thing or things that infringe the Good Person plaintiff's patent. And Form 18 — which appears with its brothers and sisters in the Appendix of Forms to the Federal Rules of Civil Procedure — says that will do just fine.

But Form 18 predates the Supreme Court's rulings in Bell Atl. Co. v. Twombly and Ashcroft v. Iqbal. As you will recall, Twombly and Iqbal designed, built, and launched a "plausibility" standard for judging whether a pleading states a claim that can survive a challenge under Rule 12. Many objected that the Court had amended Rule 12(b)(6) — to make it harder to satisfy — while pretending not to.

In 2012, a district court granted a motion to dismiss under 12(b)(6) for failure to state a plausible patent infringement claim despite the fact that the complaint complied with Form 18. Today, the Federal Circuit reversed, holding that doing what Form 18 calls for suffices, even after (the Court's sub silentio amendment of Rule 12(b)(6) in) Twombly and Iqbal. See K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., No. 12-1425 (Fed Cir. Apr. 18, 2013).

Should the Court grant review in K-Tech? If it does, it could then repeat why it thinks plausibility does NOT imply any degree of probability, and it then could go on to explain whether the bare-bones of Form 18 either fails Twombly and Iqbal (thus proving the amendment theory) or doesn't (ergo making patent cases a favorite of the federal courts).

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