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IP: Uneven playing field for defendants in patent cases

Some federal district courts appear to be raising pleadings standards for counterclaims and affirmative defenses

Some federal district courts appear to be raising the bar on pleadings standards for counterclaims and affirmative defenses in patent cases. This may seem surprising in light of last year’s Federal Circuit decision confirming that, even in the post-Twombly world, the barebones pleadings requirements of Form 18 of the Federal Rules of Civil Procedure are sufficient for plaintiff’s claims of direct infringement. However, In re Bill of Lading did not address counterclaims and affirmative defenses, and an odd dichotomy has emerged: Some courts are holding defendants to a heightened pleading standard for affirmative defenses and counterclaims, while permitting plaintiffs to continue the pre-Twombly notice pleading practice.

Prior to Twombly, notice pleading for affirmative defenses and counterclaims of non-infringement and invalidity was the norm. Recently, however, the District of Delaware dismissed counterclaims alleging invalidity for failure to comply with the Twombly standard. (The decision in Bell Atlantic Corp. v. Twombly held that under Federal Rule of Civil Procedure Rule 8(a)(2) a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”)

Contributing Author

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Karen Bromberg

Karen H. Bromberg is a partner with Cohen & Gresser LLP and heads its intellectual property and technology group.

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Contributing Author

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Francisco Villegas

Francisco A. Villegas is counsel in Cohen & Gresser's intellectual property and technology group.

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