Fed Circuit Watch: Technicality in Rules Does Not Eviscerate Showing Patent Infringement

Because patent infringement is the exclusive jurisdiction of the Court of Appeals for the Federal Circuit, any procedural rules governing the cases are examined under the Federal rules.¹ These confusing and arcane rules sometimes make analysis of patent cases more an exercise of rules research rather than patent law itself. An example is Disc Disease Sols., Inc. v. VGH Sols., Inc.,² which was decided by the Fed Circuit on May 1, 2018.

Source: U.S. Patent No. 7,618,509 B2, Nov. 17, 2009, to Ickchun Chang

Disc Disease owns U.S. Patent No. 8,012,113 (‘113), entitled “Spinal Brace,” and directed to air injectable band with a rigid panel worn around the waist. It also owns U.S. Patent No. 7,618,509 (‘509), entitled “Wrinkled Band Without Air Expansion Tube and its Manufacturing Method,” directed to a method of manufacture of a specialized wrinkled band used for hernia treatment and protection.

On November 30, 2015, Disc Disease filed a patent infringement suit alleging infringement of the ‘113 and ‘509 patents. The complaint specifically identified VGH’s products and alleged that the products meet “each and every element of at least one claim of the ‘113 or ‘509 patent either literally or equivalently.”³ On the following day, December 1, 2015, amendments were made to the F.R.C.P., which included changes for all proceedings in federal civil cases. On March 31, 2016, VGH file a motion to dismiss under Rule 12(b)(6) for failure to state claim, which was granted by the district court.

Fed Circuit panel was composed of Judges Reyna, Wallach, and Stoll, with Judge Reyna writing for the court reversed the district court decision. The district court ruled that the form abrogation applied to Disc Disease’s complaint, and the Iqbal/Twombly standard attached to the case. Twombly held that a complaint must contain a short and plain statement that the plaintiff is entitled to relief.⁴ Iqbal held that a plaintiff’s factual allegations must be enough for a court to draw reasonable inference that the defendant is liable for the misconduct alleged. ⁵ Since Rule 84 abrogation on December 1, 2015, the patent pleading standard is now that enunciated by Iqbal/Twombly heightened fact pleading standard.

Judge Reyna, in dicta, did not address directly whether the case falls under the Iqbal/Twombly standard:

We do not address the question of whether the Form 18 or the Iqbal/Twombly pleading standard applies in this case as we conclude that Disc Disease’s claims of patent infringement were sufficiently pleaded under the latter.⁶

Further, he notes:

Disc Disease’s allegations are sufficient under the plausibility standard of Iqbal/Twombly. This case involves a simple technology. The asserted patents, which were attached to the complaint, consist of only four independent claims. The complaint specifically identified the three accused products – by name and by attaching photos of the product packaging as exhibits – and alleged that the accused products meet “each and every element of at least one claim of the ‘113 [or ‘509] patent, either literally or equivalently.” These disclosures and allegations are enough to provide VGH Solutions fair notice of infringement of the asserted patents.⁷

The district court erred in dismissing Disc Disease’s complaint for failure to state a claim, and the case was remanded back to the District Court of Georgia.

Footnotes

1. See, e.g., Federal Rules of Civil Procedure (FRCP), Federal Rules of Appellate Procedure (FRAP). ↩

2. ___F.3d___ (Fed. Cir. 2018), rev’g and remanding No. 1:15-CV-188 (LJA), 2016 WL 6561566 (M.D. Ga. Nov. 2, 2016). ↩

3. Disc Disease, supra (slip op. at 4). ↩

4. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). ↩

5. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). ↩

6. Disc Disease, supra (slip op. at 7, fn. 3). ↩

7. Id. (slip op. at 7-8). ↩