The court denied defendants' motion to dismiss for failure to state a claim where plaintiff's complaint was modeled on FRCP Form 18. "[T]he operative question is whether a pleading that closely tracks Form 18 states sufficient facts to survive a motion to dismiss under [Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)], despite its presentation of little more than threadbare recitals of the elements of a cause of action for direct infringement. . . . It is difficult to reconcile the pleading standards set forth in Twombly and [Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)] with the legally conclusive form of pleading found in Form 18. However, the Court agrees with the post-Twombly holding in [McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007)] that a litigant who complies with the provisions of Form 18 has sufficiently stated a claim for direct infringement as contemplated by Rule 12(b)(6). . . .Since the Federal Rules state that compliance with the forms is sufficient, and the Supreme Court's decisions in Twombly and Iqbal could not have amended the Federal Rules, a complaint alleging literal infringement that tracks Form 18 is sufficient to withstand a motion to dismiss under Rule 12(b)(6)."
W.L. Gore & Associates, Inc., et. al. v. Medtronic, Inc., et. al., 2-10-cv-00441 (VAED April 20, 2011, Order) (Davis, J.)