Pleading Standards in Patent Litigation After Bell Atlantic Corp. v. Twombly

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, a recent Supreme Court decision which addressed the sufficiency of pleadings for a claim under Section 1 of the Sherman Act, has prompted defendants in a wide variety of actions, including patent cases, to file motions urging district courts to apply the 'new' Twombly pleading standard to dismiss the actions against them.

For example, Twombly is currently the focus of a motion to dismiss claims of patent infringement in the Eastern District of Texas, where FotoMedia sued Yahoo! and four other companies alleging that the 'photosharing' Web sites operated by the defendants infringe its three patents. Fotomedia Tech., LLC. v. AOL LLC Civ. No. 2:07-CV-255-TJW. On Nov. 28, defendants filed a motion to dismiss, arguing that the following allegations are insufficient to state a claim for indirect and willful infringement:

Defendants 'have been and are now directly infringing, and indirectly infringing by way of inducing infringement and/or contributing to the infringement of [the patents-in-suit] in the State of Texas ' by, among other things, making, using, licensing, selling, offering for sale, or importing photosharing web site services alone or in combination with personal computers, as well as related services covered by one or more claims of the [patents-in-suit], all to injury of FotoMedia.'

Defendants' 'acts of infringement of the [patents-in-suit] have been willful, deliberate, and in reckless disregard of FotoMedia's patent rights.'

At least three appellate courts, including the Federal Circuit, have considered whether Twombly's holding is limited to the antitrust context and whether it changed the regime of notice pleading. Additionally, two district courts have applied Twombly to pleadings in patent cases.

Rule 8 Pleading Standards and the Twombly Decision

The general rules of pleading are set forth in Rule 8 of the Federal Rules of Civil Procedure. To state a claim for relief, a complaint must set forth: 1) grounds for jurisdiction, 2) 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 3) relief sought. The rule embodies notice pleading, which ensures that claims are determined on their merits rather than through missteps in drafting the complaint. Courts have construed Rule 8 accordingly to mean that a plaintiff must simply allege sufficient facts to give a defendant fair notice of the plaintiff's claim and the grounds on which it rests. When ruling on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a judge must accept all factual allegations contained in the complaint as true. A 1957 Supreme Court case, Conley v. Gibson, further added that a complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' 355 U.S. 41, 45-46 (1957).

In Twombly, the Supreme Court 'retired' the oft-cited 'no set of facts' language, prompting litigants and courts to explore whether Twombly in effect raised the bar on pleadings. The Twombly controversy arose in the Southern District of New York where a class of subscribers of local telephone and high-speed Internet services sued telecommunications providers, alleging that the defendants conspired to prevent entry into their respective markets. The main deficiency in the complaint was the plaintiffs' failure to plead facts sufficient to show 'an agreement.'

The district court dismissed the complaint, finding that it did not allege facts 'suggesting that refraining from competing in other territories ' was contrary to [the providers'] apparent economic interests, and consequently [does] not raise an inference that [their] actions were the result of a conspiracy.' The Second Circuit reversed, holding that the complaint satisfied the liberal pleading standards of Rule 8.

The Supreme Court sided with the district court, finding that plaintiffs' allegations of an agreement, based largely on parallel conduct, were subject to alternative explanations, which would not necessarily trigger liability under Section 1 of the Sherman Act. The Supreme Court held that the complaint did not contain 'enough factual matter (taken as true) to suggest that an agreement was made.' The Supreme Court clarified that it was not imposing a probability requirement at the pleading stage and that asking for plausible grounds to infer an agreement raises only the expectation that discovery will reveal such evidence. Due to the expense involved in antitrust litigation, the Court rejected case management and discovery as methods of weeding out groundless claims.

Application of Twombly By the Regional Circuit Courts

The Federal Circuit follows regional circuit law when reviewing decisions on motions to dismiss for failure to state a claim. At least two regional circuit courts had a chance to interpret Twombly and both extended its holding beyond the antitrust context. As the Second Circuit noted in Iqbal v. Hasty, the more thorough of the analyses, the Supreme Court's 'explanation for its holding indicated that it intended to make some alteration in the regime of pure notice pleading that had prevailed in the federal courts ever since Conley v. Gibson was decided half a century ago.' 490 F.3d 143, 155 (2nd Cir. 2007). The Second Circuit applied Twombly to motions to dismiss a former detainee's complaint alleging a number of Constitutional violations on grounds of qualified immunity. The Second Circuit held that Twombly does not 'require ' a universal standard of heightened fact pleading.' Rather, the Iqbal court reasoned that Twombly calls for 'a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.'

In declining to raise the bar on pleading standards, the Iqbal court cited to two Supreme Court cases ' Swierkiewitz v. Sorema N.A., where the Court cautioned against raising the pleading requirements by judicial interpretation, and Erickson v. Pardus, a post-Twombly decision which seemingly reaffirmed the Court's commitment to notice pleading. See 534 U.S. 506 (2002); 127 S. Ct. 2197 (2007). In Erickson, the Supreme Court reversed the Tenth Circuit's dismissal of a litigant's Eighth Amendment claim, which was based on the prison officials' removal of the plaintiff from a treatment program for hepatitis C. The Court held that the inmate's allegations that the medication was withheld 'shortly after' he had commenced a treatment program that would take one year, that he was 'still in need of treatment for this disease,' and that the prison officials were refusing to provide the treatment was enough to satisfy the 'liberal' pleading requirements of Rule 8(a)(2). The holding was further bolstered by the litigant's pro se status as 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'

The Seventh Circuit, in EEOC v. Concentra Health Servs., Inc., addressed the applicability of Twombly to a claim that an employer violated the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 when he fired an employee for reporting the employer's affair with a co-worker. 496 F.3d 773 (7th Cir. 2007). The complaint, however, alleged only that:

Defendant has engaged in unlawful employment practices ' in violation of Section 704(a) of Title VII, 42 U.S.C. Sec. 2000(e)-3(a). Such unlawful employment practices include, but are not limited to retaliating against Horn after he opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct to Concentra's Director of Human Resources. Concentra's retaliation includes, but is not limited to, issuing Horn unwarranted negative evaluations and terminating him.

The Seventh Circuit held that the above language amounts to nothing more than conclusory allegations that fail to give Defendant notice of the claim and grounds on which it rests. Although the Seventh Circuit doubted that Twombly changed the level of detail required by notice pleading and stated that the complaint would fail even in a pre-Twombly world, it refused to entertain arguments based on the Conley 'no set of facts' language. The appellate court emphasized that after Twombly, 'it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief.' (emphasis in the original).

Effect of Twombly on Patent Litigation

Decided within less than a month of Twombly, Bartronics v. Power-One presented the first opportunity to apply Twombly's holding to a patent case. 245 F.R.D. 532 (S.D. Ala. 2007). In Bartronics, the plaintiff objected to the allegations in the defendants' counterclaims, which read in their entirety: 'One or more of the claims of the [patent-in-suit] are invalid under 35 U.S.C. '103' and 'One or more of the claims of the [patent-in-suit] are invalid as being indefinite under 35 U.S.C. '112, second paragraph.' The district court found that the 'entirely conclusory [counterclaims] without any accompanying factual allegations that might state a claim to relief that is plausible on its face,' ran afoul of Twombly. The Southern District of Alabama, however, declined to apply Twombly to the corresponding affirmative defenses, which were not at issue in the plaintiff's motion dismiss.

The Southern District of California was the next court to apply Twombly to a patent case, this time applying it to allegations of patent infringement. In Anticancer Inc. v. Xenogen Corp, the infringement pleadings stated:

Each of the defendants has directly infringed the [ ] Patent and has indirectly infringed the [ ] Patent by contributing to or inducing direct infringement of the [ ] Patent by others. 2007 U.S. Dist. LEXIS 59811 (S.D. Cal. 2007).

Citing to the Iqbal and the EEOC opinions, as well as to lower court decisions that extended Twombly beyond the antitrust context, the Southern District of California held that Twombly applies to pleadings in patent infringement actions. The district court further found that 'pleadings must allege enough facts so as to demonstrate a plausible entitlement to relief' and that the allegations in the complaint failed under this standard. Unlike the court in Bartronics, the Anticancer court noted that it would also apply the Twombly standard to affirmative defenses, in addition to claims, counterclaims, and cross-claims.

When Anticancer Inc. was decided in August, neither the Federal Circuit nor the Ninth Circuit had yet made clear how and whether Twombly changed the pleading standards in patent cases. In McZeal v. Sprint Nextel Corp., decided a month later, the Federal Circuit indicated that the Supreme Court's disavowal of Conley's 'no set of facts' language has not altered the pleading standard under Rule 8. 501 F.3d 1354 (Fed. Cir. 2007). Applying Fifth Circuit law to a complaint alleging trademark and patent infringement, the Federal Circuit reversed the judgment of the Southern District of Texas, which dismissed a pro se litigant's claims.

In McZeal, the plaintiff: 1) alleged ownership of the patent in suit; 2) cited the patent in suit as allegedly infringed; 3) described the means by which defendant allegedly infringes ('[t]he defendant's INTERNATIONAL WALKIE TALKIE machine physically have [sic] or perform all of the basic elements contained in the patent claims of the plaintiff and further infringes under the doctrine of equivalents'); 4) pointed to specific parts of the patent invoked; and 5) specified that Motorola i930 manufactured and distributed by the defendants infringes the patent.

The Federal Circuit held that nothing more was required. The complaint contained 'enough detail to allow the defendants to answer and thus [met] the notice pleading required to survive a [motion to dismiss].' According to the Federal Circuit, a plaintiff is not required to specifically include each element of the asserted patent, but rather only sufficient facts to place the defendant on notice of what he must defend. In support of its decision, the Federal Circuit cited to the litigant's pro se status and to F.R.C.P. Form 16, which sets forth a sample complaint for patent infringement actions.

Rule 84 of the Federal Rules of Civil Procedure provides that the 'forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.' Accordingly, allegations of infringement modeled on Form 16 meet the pleading standards of Rule 8. The sample complaint includes the following elements: 1) an allegation of jurisdiction; 2) a statement that the plaintiff owns the patent; 3) a statement that defendant has been infringing the patent 'by making selling and using [the device] embodying the patent'; 4) a statement that the plaintiff has given the defendant notice of its infringement; and 5) a demand for an injunction and damages. Although the plaintiff in McZeal admitted that he did not know the detailed mechanisms by which the products operated, the Federal Circuit held that such information is properly the subject of discovery.

Justice Timothy B. Dyk dissented, contending that the bare allegations of infringement of Form 16 are inconsistent with the pleading standard set forth in Twombly. While he conceded that Rule 84 would preclude judges from dismissing complaints modeled on the form, he argued that Form 16 is inadequate in providing notice to defendants, especially in allegations of infringement under the doctrine of equivalents.

Conclusion

There is no doubt that Twombly's holding is applicable to patent cases. Yet, the extent to which the pleading standards have been changed is not clear. Certainly, the Supreme Court's rationale for Twombly's holding, a desire to avoid unnecessary costly discovery, is applicable to patent cases.

Although the Federal Circuit indicated that the pleading standard has not been altered, the case involved a pro se litigant. Accordingly, McZeal is easily distinguishable from most patent litigation scenarios. At the very least, Twombly's 'retirement' of Conley's 'no set of facts' language suggests that it may no longer be sufficient to plead facts that do not foreclose possible bases of relief. Rather, a litigant should plead enough facts to suggest a plausible right to relief.

Finally, because the Federal Rules provide a form complaint for allegations of patent infringement, Twombly's holding is potentially favorable to plaintiffs. Form 16, (the new Form 18) and Rule 84 appear to protect plaintiffs in patent suits from any heightened pleading requirements that Twombly might otherwise impose. On the other hand, defendants, who pursuant to 35 U.S.C. '282 are required to plead affirmative defenses such as invalidity (for which no forms are provided), may be left vulnerable to attack for insufficiency of pleadings. Although the federal courts are still grappling with the effects of Twombly on patent litigation, Anticancer suggests that the routine one-sentence allegations of noninfringement or invalidity may no longer survive a motion to strike.

Yekaterina Korostash is an associate in the New York office of Kenyon & Kenyon LLP. Special thank you to Mark Hannemann, a partner with Kenyon & Kenyon LLP, for his review and input.

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, a recent Supreme Court decision which addressed the sufficiency of pleadings for a claim under Section 1 of the Sherman Act, has prompted defendants in a wide variety of actions, including patent cases, to file motions urging district courts to apply the 'new' Twombly pleading standard to dismiss the actions against them.

For example, Twombly is currently the focus of a motion to dismiss claims of patent infringement in the Eastern District of Texas, where FotoMedia sued Yahoo! and four other companies alleging that the 'photosharing' Web sites operated by the defendants infringe its three patents. Fotomedia Tech., LLC. v. AOL LLC Civ. No. 2:07-CV-255-TJW. On Nov. 28, defendants filed a motion to dismiss, arguing that the following allegations are insufficient to state a claim for indirect and willful infringement:

Defendants 'have been and are now directly infringing, and indirectly infringing by way of inducing infringement and/or contributing to the infringement of [the patents-in-suit] in the State of Texas ' by, among other things, making, using, licensing, selling, offering for sale, or importing photosharing web site services alone or in combination with personal computers, as well as related services covered by one or more claims of the [patents-in-suit], all to injury of FotoMedia.'

Defendants' 'acts of infringement of the [patents-in-suit] have been willful, deliberate, and in reckless disregard of FotoMedia's patent rights.'

At least three appellate courts, including the Federal Circuit, have considered whether Twombly's holding is limited to the antitrust context and whether it changed the regime of notice pleading. Additionally, two district courts have applied Twombly to pleadings in patent cases.

Rule 8 Pleading Standards and the Twombly Decision

The general rules of pleading are set forth in Rule 8 of the Federal Rules of Civil Procedure. To state a claim for relief, a complaint must set forth: 1) grounds for jurisdiction, 2) 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 3) relief sought. The rule embodies notice pleading, which ensures that claims are determined on their merits rather than through missteps in drafting the complaint. Courts have construed Rule 8 accordingly to mean that a plaintiff must simply allege sufficient facts to give a defendant fair notice of the plaintiff's claim and the grounds on which it rests. When ruling on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a judge must accept all factual allegations contained in the complaint as true. A 1957 Supreme Court case, Conley v. Gibson, further added that a complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' 355 U.S. 41, 45-46 (1957).

In Twombly, the Supreme Court 'retired' the oft-cited 'no set of facts' language, prompting litigants and courts to explore whether Twombly in effect raised the bar on pleadings. The Twombly controversy arose in the Southern District of New York where a class of subscribers of local telephone and high-speed Internet services sued telecommunications providers, alleging that the defendants conspired to prevent entry into their respective markets. The main deficiency in the complaint was the plaintiffs' failure to plead facts sufficient to show 'an agreement.'

The district court dismissed the complaint, finding that it did not allege facts 'suggesting that refraining from competing in other territories ' was contrary to [the providers'] apparent economic interests, and consequently [does] not raise an inference that [their] actions were the result of a conspiracy.' The Second Circuit reversed, holding that the complaint satisfied the liberal pleading standards of Rule 8.

The Supreme Court sided with the district court, finding that plaintiffs' allegations of an agreement, based largely on parallel conduct, were subject to alternative explanations, which would not necessarily trigger liability under Section 1 of the Sherman Act. The Supreme Court held that the complaint did not contain 'enough factual matter (taken as true) to suggest that an agreement was made.' The Supreme Court clarified that it was not imposing a probability requirement at the pleading stage and that asking for plausible grounds to infer an agreement raises only the expectation that discovery will reveal such evidence. Due to the expense involved in antitrust litigation, the Court rejected case management and discovery as methods of weeding out groundless claims.

Application of Twombly By the Regional Circuit Courts

The Federal Circuit follows regional circuit law when reviewing decisions on motions to dismiss for failure to state a claim. At least two regional circuit courts had a chance to interpret Twombly and both extended its holding beyond the antitrust context. As the Second Circuit noted in Iqbal v. Hasty, the more thorough of the analyses, the Supreme Court's 'explanation for its holding indicated that it intended to make some alteration in the regime of pure notice pleading that had prevailed in the federal courts ever since Conley v. Gibson was decided half a century ago.' 490 F.3d 143, 155 (2nd Cir. 2007). The Second Circuit applied Twombly to motions to dismiss a former detainee's complaint alleging a number of Constitutional violations on grounds of qualified immunity. The Second Circuit held that Twombly does not 'require ' a universal standard of heightened fact pleading.' Rather, the Iqbal court reasoned that Twombly calls for 'a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.'

In declining to raise the bar on pleading standards, the Iqbal court cited to two Supreme Court cases ' Swierkiewitz v. Sorema N.A., where the Court cautioned against raising the pleading requirements by judicial interpretation, and Erickson v. Pardus, a post-Twombly decision which seemingly reaffirmed the Court's commitment to notice pleading. See 534 U.S. 506 (2002); 127 S. Ct. 2197 (2007). In Erickson, the Supreme Court reversed the Tenth Circuit's dismissal of a litigant's Eighth Amendment claim, which was based on the prison officials' removal of the plaintiff from a treatment program for hepatitis C. The Court held that the inmate's allegations that the medication was withheld 'shortly after' he had commenced a treatment program that would take one year, that he was 'still in need of treatment for this disease,' and that the prison officials were refusing to provide the treatment was enough to satisfy the 'liberal' pleading requirements of Rule 8(a)(2). The holding was further bolstered by the litigant's pro se status as 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'

The Seventh Circuit, in EEOC v. Concentra Health Servs., Inc., addressed the applicability of Twombly to a claim that an employer violated the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 when he fired an employee for reporting the employer's affair with a co-worker. 496 F.3d 773 (7th Cir. 2007). The complaint, however, alleged only that:

Defendant has engaged in unlawful employment practices ' in violation of Section 704(a) of Title VII, 42 U.S.C. Sec. 2000(e)-3(a). Such unlawful employment practices include, but are not limited to retaliating against Horn after he opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct to Concentra's Director of Human Resources. Concentra's retaliation includes, but is not limited to, issuing Horn unwarranted negative evaluations and terminating him.

The Seventh Circuit held that the above language amounts to nothing more than conclusory allegations that fail to give Defendant notice of the claim and grounds on which it rests. Although the Seventh Circuit doubted that Twombly changed the level of detail required by notice pleading and stated that the complaint would fail even in a pre-Twombly world, it refused to entertain arguments based on the Conley 'no set of facts' language. The appellate court emphasized that after Twombly, 'it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief.' (emphasis in the original).

Effect of Twombly on Patent Litigation

Decided within less than a month of Twombly, Bartronics v. Power-One presented the first opportunity to apply Twombly's holding to a patent case. 245 F.R.D. 532 (S.D. Ala. 2007). In Bartronics, the plaintiff objected to the allegations in the defendants' counterclaims, which read in their entirety: 'One or more of the claims of the [patent-in-suit] are invalid under 35 U.S.C. '103' and 'One or more of the claims of the [patent-in-suit] are invalid as being indefinite under 35 U.S.C. '112, second paragraph.' The district court found that the 'entirely conclusory [counterclaims] without any accompanying factual allegations that might state a claim to relief that is plausible on its face,' ran afoul of Twombly. The Southern District of Alabama, however, declined to apply Twombly to the corresponding affirmative defenses, which were not at issue in the plaintiff's motion dismiss.

The Southern District of California was the next court to apply Twombly to a patent case, this time applying it to allegations of patent infringement. In Anticancer Inc. v. Xenogen Corp, the infringement pleadings stated:

Each of the defendants has directly infringed the [ ] Patent and has indirectly infringed the [ ] Patent by contributing to or inducing direct infringement of the [ ] Patent by others. 2007 U.S. Dist. LEXIS 59811 (S.D. Cal. 2007).

Citing to the Iqbal and the EEOC opinions, as well as to lower court decisions that extended Twombly beyond the antitrust context, the Southern District of California held that Twombly applies to pleadings in patent infringement actions. The district court further found that 'pleadings must allege enough facts so as to demonstrate a plausible entitlement to relief' and that the allegations in the complaint failed under this standard. Unlike the court in Bartronics, the Anticancer court noted that it would also apply the Twombly standard to affirmative defenses, in addition to claims, counterclaims, and cross-claims.

When Anticancer Inc. was decided in August, neither the Federal Circuit nor the Ninth Circuit had yet made clear how and whether Twombly changed the pleading standards in patent cases. In McZeal v. Sprint Nextel Corp., decided a month later, the Federal Circuit indicated that the Supreme Court's disavowal of Conley's 'no set of facts' language has not altered the pleading standard under Rule 8. 501 F.3d 1354 (Fed. Cir. 2007). Applying Fifth Circuit law to a complaint alleging trademark and patent infringement, the Federal Circuit reversed the judgment of the Southern District of Texas, which dismissed a pro se litigant's claims.

In McZeal, the plaintiff: 1) alleged ownership of the patent in suit; 2) cited the patent in suit as allegedly infringed; 3) described the means by which defendant allegedly infringes ('[t]he defendant's INTERNATIONAL WALKIE TALKIE machine physically have [sic] or perform all of the basic elements contained in the patent claims of the plaintiff and further infringes under the doctrine of equivalents'); 4) pointed to specific parts of the patent invoked; and 5) specified that Motorola i930 manufactured and distributed by the defendants infringes the patent.

The Federal Circuit held that nothing more was required. The complaint contained 'enough detail to allow the defendants to answer and thus [met] the notice pleading required to survive a [motion to dismiss].' According to the Federal Circuit, a plaintiff is not required to specifically include each element of the asserted patent, but rather only sufficient facts to place the defendant on notice of what he must defend. In support of its decision, the Federal Circuit cited to the litigant's pro se status and to F.R.C.P. Form 16, which sets forth a sample complaint for patent infringement actions.

Rule 84 of the Federal Rules of Civil Procedure provides that the 'forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.' Accordingly, allegations of infringement modeled on Form 16 meet the pleading standards of Rule 8. The sample complaint includes the following elements: 1) an allegation of jurisdiction; 2) a statement that the plaintiff owns the patent; 3) a statement that defendant has been infringing the patent 'by making selling and using [the device] embodying the patent'; 4) a statement that the plaintiff has given the defendant notice of its infringement; and 5) a demand for an injunction and damages. Although the plaintiff in McZeal admitted that he did not know the detailed mechanisms by which the products operated, the Federal Circuit held that such information is properly the subject of discovery.

Justice Timothy B. Dyk dissented, contending that the bare allegations of infringement of Form 16 are inconsistent with the pleading standard set forth in Twombly. While he conceded that Rule 84 would preclude judges from dismissing complaints modeled on the form, he argued that Form 16 is inadequate in providing notice to defendants, especially in allegations of infringement under the doctrine of equivalents.

Conclusion

There is no doubt that Twombly's holding is applicable to patent cases. Yet, the extent to which the pleading standards have been changed is not clear. Certainly, the Supreme Court's rationale for Twombly's holding, a desire to avoid unnecessary costly discovery, is applicable to patent cases.

Although the Federal Circuit indicated that the pleading standard has not been altered, the case involved a pro se litigant. Accordingly, McZeal is easily distinguishable from most patent litigation scenarios. At the very least, Twombly's 'retirement' of Conley's 'no set of facts' language suggests that it may no longer be sufficient to plead facts that do not foreclose possible bases of relief. Rather, a litigant should plead enough facts to suggest a plausible right to relief.

Finally, because the Federal Rules provide a form complaint for allegations of patent infringement, Twombly's holding is potentially favorable to plaintiffs. Form 16, (the new Form 18) and Rule 84 appear to protect plaintiffs in patent suits from any heightened pleading requirements that Twombly might otherwise impose. On the other hand, defendants, who pursuant to 35 U.S.C. '282 are required to plead affirmative defenses such as invalidity (for which no forms are provided), may be left vulnerable to attack for insufficiency of pleadings. Although the federal courts are still grappling with the effects of Twombly on patent litigation, Anticancer suggests that the routine one-sentence allegations of noninfringement or invalidity may no longer survive a motion to strike.

Yekaterina Korostash is an associate in the New York office of Kenyon & Kenyon LLP. Special thank you to Mark Hannemann, a partner with Kenyon & Kenyon LLP, for his review and input.