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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.

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