Restoring Equilibrium: Why Twombly and Iqbal Should Apply to All Pleadings in Patent Cases

Author:Sarah E. Jack
Position:J.D. Candidate, The University of Iowa College of Law, 2018; B.S., Wichita State University, 2015
Pages:1301-1327
SUMMARY

The Supreme Court's decisions in Twombly and Iqbal have caused a major shift in the pleading requirement for complaints and, in most district courts, counterclaims. By requiring that a claim be accompanied by "plausible" facts, the Court gave district courts a great deal more latitude to dismiss poorly pled cases. However, the full application of Twombly and Iqbal to pleadings filed by the... (see full summary)

 
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Restoring Equilibrium: Why Twombly and
Iqbal Should Apply to All Pleadings in
Patent Cases
Sarah E. Jack*
ABSTRACT: The Supreme Court’s decisions in Twombly and Iqbal have
caused a major shift in the pleading requirement for complaints and, in most
district courts, counterclaims. By requiring that a claim be accompanied by
“plausible” facts, the Court gave district courts a great deal more latitude to
dismiss poorly pled cases. However, the full application of Twombly and
Iqbal to pleadings filed by the defendant has not occurred. Courts only
inconsistently apply plausible pleading to counterclaims and affirmative
defenses. The effect of the higher pleading standard on patent litigation is
generally positive, decreasing the amount of abusive patent litigation that
gains access to full discovery. But, the imbalance between plaintiffs’ and
defendants’ pleading burdens exacerbates what is already a heavily
imbalanced high rate of success for defendants in patent litigation. This Note
argues that the Federal Circuit should combat the already skewed defendant
success rate in patent litigation by requiring defendants to plausibly plead
affirmative defenses and counterclaims.
I.INTRODUCTION ........................................................................... 1302
II.BACKGROUND ............................................................................. 1303
A.THE FEDERAL RULES OF CIVIL PROCEDURE ............................. 1303
B.THE PLEADING RULES IN PRACTICE ........................................ 1304
C.PLEADING PLAUSIBLY AND PATENT LITIGATION ...................... 1308
D.PATENTS: POLICY AND PROBLEMS .......................................... 1309
III.PROTECTING THE RIGHTS OF HONEST INVENTORS AND
TROLLS ....................................................................................... 1312
*
J.D. Candidate, The University of Iowa College of Law, 2018; B.S., Wichita State
University, 2015. Thank you to Professor Jason Rantanen for cultivating my interest in patent law
and for support during the Note-writing process; to my Note Editors, Logan Eliasen and Evelyn
Anderson; and to the editors and student writers of Volumes 102 & 103 of the Iowa Law Review.
Finally, thank you to my father, Kenneth Jack, for unending support and for sparking my interest
in patent law.
1302 IOWA LAW REVIEW [Vol. 103:1301
A.PLAUSIBLE PLEADING: IMPEDING ACCESS WHILE
INCREASING EFFICIENCY ......................................................... 1312
B.HOW PLAUSIBILITY HAS PLAYED OUT THUS FAR .................... 1316
1.Application of Twiqbal to Indirect Infringement ...... 1316
2.Application of Twiqbal to Counterclaims ................... 1317
3.Inconsistent Application of Twiqbal to
Affirmative Defenses ................................................... 1319
IV. APPLICATION OF TWIQBAL TO ALL PATENT PLEADINGS .............. 1321
A.PLAUSIBLE PLEADING RESTORES EQUILIBRIUM ....................... 1322
B.IMPLEMENTING THE STANDARD ............................................. 1324
C.ADDRESSING THE CRITICS ...................................................... 1325
V.CONCLUSION .............................................................................. 1326
I. INTRODUCTION
Courts have evaluated pleadings under a uniform standard for centuries.
In 2007, the Supreme Court announced a “plausible pleading” standard
(alternatively referred to as the “Twiqbal1 standard), demanding that
plaintiffs allege more facts than were previously required under the notice-
pleading standard.2 Until the elimination of Form 18 in December 2015,
district courts evaluated direct patent infringement complaints under a lower
standard set out in the form.3 Following the elimination of Form 18, the
plausible-pleading standard applies to all civil complaints.4 This higher
pleading standard increases the burden on plaintiffs, but leaves defendants
able to plead affirmative defenses or counterclaims under the less strict
standards of notice pleading. The result is a pleading standard that is out of
equilibrium, favoring defendants at the pleading phase of litigation.
Although courts and policymakers are seeking a solution to the problem
of “patent trolls,”5 the ultimate solution should not decrease a legitimate
plaintiff’s ability to recover for infringement, as uneven pleading burdens do.
1. Twiqbal” is derived from the two Supreme Court cases that resulted in a higher pleading
standard. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
2. The Court’s notice-pleading rule establishe d that “all the Rules require is ‘a short and
plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (footnote
omitted) (quoting FED. R. CIV. P. 8(a)(2)).
3. See FED. R. CIV. P. Form 18 (abrogat ed Dec. 1, 2015) (providing a simple form for patent
plaintiffs to plead patent infringement).
4. See generally Brandon L. Garrett, Applause for the Plausible, 162 U. PA. L. REV. ONLINE 221
(2014), https://www.pennlawreview.com/online/162-U- Pa-L-Rev-Online-221.pdf (discussing the
difficulty of pinning down a definition of “plausible” pleading).
5. See infra Part II.D (discussing how the Court and legislatures have attempted to curb the
activity of patent trolls).

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