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In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007), an antitrust case, the U.S. Supreme Court put to rest the five-decade-old pleading standard from Conley v. Gibson that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court replaced the Conley standard with one that requires a claimant to plead sufficient facts to “nudge[ ] their claims across the line from conceivable to plausible” in order to survive dismissal. Twombly, 127 S.Ct. at 1974. Thus, Twombly appears to have raised the pleading threshold for all claims, including patent claims. But although some district courts have held that Twombly did raise the pleading threshold in patent cases, the Court of Appeals for the Federal Circuit (“CAFC”) has only discussed the application of Twombly in a pro se plaintiff case where it concluded that the pro se plaintiff met the low bar for pro se litigants to avoid dismissal. In addition to not addressing the effect of Twombly on patent infringement pleading requirements for non-pro se plaintiffs, the CAFC also did not address whether Twombly heightens the pleading standard for patent claims, counterclaims, and affirmative defenses falling outside of the infringement claims addressed by Fed. R. Civ. P. Form 16 (“Form 16”), which is a matter of much disagreement among the various district courts addressing the effect of Twombly on patent pleading. As a result, at present, the effect of Twombly on patent claims and affirmative defenses is an issue that practitioners should pay close attention to in each district court in which they practice.

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