Iqbal-ing Seagate: Plausibility Pleading of Willful Patent Infringement

Abstract

“Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.” Practically speaking, pleadings are the necessary gateway to any civil action and unlock the doors to discovery. In general, a complaint should set forth the basic facts known to the plaintiff and serves to put defendants on notice of the allegations and resulting harm that the plaintiff seeks to remedy. However, ascertaining the depth of the harm and defendants’ specific injurious conduct frequently requires extensive discovery procedures. In the interest of serving judicial economy and avoiding frivolous litigation, these discovery procedures are generally only available once a complainant has sufficiently pled facts upon which he has shown that he is entitled to relief. In 2009, the Supreme Court in Ashcroft v. Iqbal raised the bar for what must be pled to survive defendants’ motions to dismiss and to begin the discovery process. The Court abandoned the “no set of facts” language that prevailed as the judicial interpretation of Federal Rule of Civil Procedure 8(a)(2) for half a century, and elevated the standard to one where the pleadings must “state a claim to relief that is plausible on its face.” Just two years earlier, in In re Seagate Technology, LLC, the Court of Appeals for the Federal Circuit similarly abandoned its own well-established negligence standard for proving willful patent infringement. Relying on the Supreme Court’s latest interpretation of “willful,” the Federal Circuit elevated the threshold of willfulness to a level of “objective recklessness.”This Note argues that when taken together, Iqbal and Seagate will raise the bar for sufficiently pleading willful patent infringement beyond any attainable level. Part II describes the Supreme Court’s recent decisions that heighten the standard for Rule 8(a)(2) pleadings and the Federal Circuit’s shift from a negligence standard to a recklessness standard for proving willful patent infringement. Part III provides a review of the plausibility-standard language and suggests three mechanisms rooted in the Federal Rules of Civil Procedure that patentee–plaintiffs can employ to circumvent the stringent threshold to survive defendants’ motions to dismiss. Part IV evaluates the new standard for willful patent infringement by comparing it to standards for bad-faith infractions in other areas of intellectual property law. Finally, Part IV also contemplates whether the courts should desert willfulness as the hallmark indicium for increased damages in favor of other bad-faith characteristics of the defendant or conduct surrounding the infringement.