Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
An Overview of Twombly on Patent Pleading Disputes
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.
Twombly
In Twombly, local telephone and Internet service subscribers, as a class, alleged that a group of regional telephone companies violated '1 of the Sherman Act ('Act'), 15 U.S.C. '1 (2006), prohibiting unlawful agreements between parties to restrain trade in carrying out the requirements of the Telecommunications Act of 1996 ('Telecom Act'), Pub. L. No. 104-104. The Telecom Act required those regional telephone companies to open their local telephone service monopolies to competition, provide network connectivity to competitors, and to sell wholesale services to competitors. The Twombly plaintiffs were such competitors, and they alleged that the defendants restrained trade by conspiring in 'parallel conduct' to prevent new competitors from entering the market. Twombly, 127 S. Ct. at 1962. Specifically, the plaintiffs complained that the regional telephone companies interfered with customer relationships, did not provide adequate network connectivity to new competitors, and would not negotiate in good faith with new competitors. Id. Second, the plaintiffs claimed that this alleged conspiracy was the result of an 'agreement' between the defendants. Id. at 1962-63. The district court dismissed the complaint because the plaintiffs failed to plead facts sufficient to exclude the possibility that the parallel behavior of the regional telephone service companies was independent, self-interested conduct ' not the result of an agreement among them. Bell Atlantic v. Twombly, 313 F. Supp. 2d 174, 179 (S.D.N.Y. 2003). The Court of Appeals for the Second Circuit ('Second Circuit') reversed the district court, holding that the dismissal was not appropriate because it could not 'conclude that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence.' Bell Atlantic v. Twombly, 425 F.3d 99, 114 (2d. Cir. 2005).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.