Today, Thu., June 7, 2012, in In re Bill of Lading, No. 2010-1493, the Federal Circuit (Newman (dissent), Prost and O’Malley) ruled that complaints were properly dismissed for not pleading contributory infringement, but they sufficiently pled induced infringement.  This case provides important guidance in pleading patent infringement, which is often a concern in multiple defendant cases.

The Majority clarified the requirement to plead facts sufficient to “plausibly” – not “probably” – support liability based on reasonable inferences.  The Federal Rules sample Form 18 controlled pleading direct infringement – whether the defendant’s alleged direct infringement or the direct infringement underlying the defendant’s alleged indirect infringement.  But Form 18 did not apply to pleading indirect infringement.

The Complaint does not need to allege how claim limitations are met or even identify the asserted patent claims.  Further, pleading indirect infringement does not require identifying specific customers who perform the underlying direct infringement as long as the facts pled allow an inference of underlying direct infringement.

Pleading contributory infringement required “plead[ing] facts that allow an inference that the components sold or offered for sale have no substantial non-infringing uses,” which may be any use that is “not unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental.”  The patent owner failed to plead sufficient facts here because it did not allege more than that the product is equally and interchangeably capable of both infringing and substantial non-infringing uses.

The Complaint pled sufficient facts for induced infringement based on advertisements and other materials submitted with the Complaint as viewed in the context of the invention.  This was a very case and fact specific analysis.

Judge Newman dissented in part because the standard Form 18 pleading should not control whether facts were sufficiently pled.