Pleading In Patent Cases

The Supreme Court holding in Bell Atlantic v. Twombly1 of a "plausibility" standard for judging whether a claim may be dismissed for failure to state a claim, has generated widespread commentary and provoked some degree of uncertainty concerning the standard for assessing the adequacy of pleadings. This commentary discusses the implication of the Bell Atlantic plausibility standard in the patent context through the analysis of several patent cases that have presented motions to dismiss.

In Bell Atlantic, the Supreme Court disavowed the oft-quoted pure notice pleading standard set 50 years ago in Conley v. Gibson that, "the accepted rule [is] 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 which would entitle him to relief." In cautioning that it was not creating a heightened pleading standard, the Supreme Court nonetheless held that to survive a motion to dismiss, the complaint must allege sufficient facts to support a plausible, not merely conceivable, claim for relief.

Although Bell Atlantic arose in the context of a Sherman Act, ß 1 class action complaint, its holding that an allegation of parallel conduct by competitors, without more, is not sufficient to plead antitrust violation has been widely recognized as generally applicable to all civil pleadings. The new plausibility test requires less than a probability, but more than a mere possibility. In Bell Atlantic, the Supreme Court reversed the Court of Appeals "because the plaintiffs here have not nudged their claims across the line from conceivable to plausible."

To date, the Federal Circuit had only one occasion on which to interpret and apply the Bell Atlantic plausibility standard. McZeal v. Sprint Nextel (see IP Update, Vol. 10, No. 10). In McZeal, a pro se plaintiff was found to have met the pleading requirements for patent infringement by pleading sufficient facts in accordance with Form 16 of the Federal Rules. However, Judge Dyk in dissent, criticized the majority decision as "inconsistent with Ö Bell Atlantic," noting that McZeal was a serial litigator with a history of bringing non-meritorious claims and that the complaint made mere conclusory allegations of infringement under only the doctrine of equivalents. In Judge Dyk's view, McZeal should not have been afforded any pro se deference.

Some district courts have taken up the new Bell Atlantic...