The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field, 8 J. Marshall Rev. Intell. Prop. L. 1 (2008)

The Supreme Court\u27s recent Twombly decision has tightened pleading standards by retiring Conley v. Gibson’s “no set of facts” language. While Twombly has been applied beyond antitrust law, its impact on patent pleadings is not yet settled. Currently, a troubling dichotomy has emerged: lower courts are holding defendants to a heightened pleading standard for affirmative defenses and counterclaims, while allowing plaintiffs to continue the pre-Twombly “bare-bones” pleadings practice. This dichotomy is inconsistent with the Twombly Court’s goal of controlling the ballooning size of and costs of complex civil litigation. Holding patent plaintiffs to a heightened pleading standard would be at most a negligible added burden in light of Rule 11’s pre-filing investigation requirement, and level the playing field by allowing defendants to better formulate specific defense theories