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

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.