103 Iowa L. Rev. 1301 (2018)

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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.