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Plaintiff successfully skirts the minimum requirements for pleading, dismissal of complaint reversed
September 17, 2007
In a decision issued Friday, the Federal Circuit applied the Supreme Court's recent Twombly decision to the pleading requirements for patent and trademark causes of action. The court held that patent infringement plaintiffs need not specifically plead the claims infringed. Further, the court applied a similarly open standard to pleading trademark infringement cases. The pro se nature of the plaintiff combined with the court's statement that it does "not condone [the plaintiff's] method of pleading" would seem to caution members of the bar from adopting this minimalistic approach to drafting complaints, however.

In a lengthy partial dissent, Judge Dyk argued that dismissal of the patent infringement complaint was proper. In his view, the complaint was not sufficient for pleading infringement under the doctrine of equivalents because the doctrine of equivalents is a complex legal theory requiring more detail for the defendant to be adequately put on notice of the claim.

More details of McZeal v. Sprint Nextel Corp. after the jump.

The case featured a "frequent pro se litigant," Alfred McZeal, and Sprint Nextel. The case concerned alleged trademark and patent infringement by Sprint of McZeal's U.S. Patent No. 6,763,226 and the service mark "INTERNATIONAL WALKIE TALKIE®." McZeal filed a 95-page complaint with twenty-four counts, all of which stemmed from the infringement of the '226 patent and the service mark. The claims of the patent alleged to be infringed are unknown, as they were identified in the complaint. During oral argument, Sprint Nextel moved for dismissal for failure to state a claim. The court determined that dismissal without giving a chance to amend was proper as the complaint was "irreparable because the facts-there are no missing facts. There just aren't any facts." After the dismissal, this appeal ensued.

The majority opinion began by noting that "the reviewing court may grant the pro se litigant leeway on procedural matters, such as pleading requirements." Although extremely lax, the court did note that there is a minimal floor to pleading as, regardless of whether or not a client is represented by counsel, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."

In assessing the patent infringement claim, the court considered Federal Rules of Civil Procedure Form 16 as a model of the minimum amount of detail required to effectively state a patent infringement cause of action. The court noted that the form only included "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 or damages." The court paid special attention to the fact that the form did not require that the plaintiff to "specifically include each element of the claims of the asserted patent." As these forms are deemed to be sufficient to meet the requirements of the Rules by Rule 84, the court concluded that the pleading had met these minimal requirements and "contained enough detail to allow the defendants to answer and thus meets the notice pleading required to survive a Rule 12(b)(6) motion."

The court then turned to the trademark infringement claim. Again the court started with the minimal elements that needed to be included, which were that the "defendant uses a designation in interstate commerce and in connection with goods or services where the designation is likely to cause confusion, mistake, or deception as to the affiliation, connection, or association of the defendant with another person, and the plaintiff has been or is likely to be damaged by these acts." The court noted that, again, the complaint met these elements when it stated that Sprint Nextel uses and advertises "the same mark as the plaintiff" for "identical telecom services and products which are confusingly similar to plaintiff's," that the use "has caused and is likely to continue to cause members of the public to believe that Defendant's telephone services are offered by way of a license or other agreement with Plaintiff," and that these actions are "causing irreparable economic loss to the plaintiff and affiliates."

After having considered the complaint and determining that the minimum requirements were met, the court noted that McZeal was "no stranger to legal proceedings" and had produced a "voluminous complaint with multiple counts, many of which are baseless and frivolous." With the caution that the court does "not condone [McZeal's] method of pleading" the court vacated the dismissal and remanded the case to the district court for further proceedings.

Judge Dyk issued an opinion concurring-in-part and dissenting-in-part that applied a different spin to the Twombly decision. A key issue was the fact that the complaint did not "specify[] which of the 12 claims were infringed," and that McZeal himself conceded that "he did not know what mechanism Nextel uses to transmit and connect its telephone customers to the rest of the world." The dissent then noted that the form the majority used as a model "long predates the modern day doctrine of equivalents articulated by the Supreme Court," and only refers to claims of literal infringement. Noting that "McZeal's failure to investigate the accused device may indeed be sanctionable" and that the complaint "utterly fails to provide any meaningful notice as to how Sprint has infringed the claims under the doctrine of equivalents," Judge Dyk concluded that the dismissal of the patent infringement count was proper.

Given the pro se litigant and the court's overall disapproval of the form of the pleadings, good practice counsels against trying to plead the absolute bare minimum in a complaint. However, if such a pleading is desired for some reason, this case provides guidance as to the essentials necessary to overcome a motion to dismiss.

To read the full opinion in McZeal v. Sprint Nextel Corp., click here.

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