I published an article in the most recent edition of the John Marshall Review of Intellectual Property Law surveying the application of the Twombly "plausibility" pleading standard, in place of the former any set of facts regime, to patent cases — The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it). I found that district courts have largely followed the Federal Circuit’s one case addressing Twombly, which unfortunately involved a pro se plaintiff, and held that Twombly did not change the pleading standards for patent plaintiffs. But despite that ruling, many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard. This creates a harmful dichotomy which can be remedied in two ways: 1) as some courts already do, use strict Local Patent Rules to require early disclosures of plaintiff’s claims followed in short order by defendant’s defenses; or 2) as at least the Western District of Wisconsin already does, require patent plaintiffs to identify the asserted claims and the accused products. Either or both level the playing field for the parties and come at little cost to plaintiffs who already have a Fed. R. Civ. P. 11 pre-suit investigation requirement.
In addition to my article, there are several excellent pieces in Volume 8, Issue 1 of Review of Intellectual Property Law, including:
- European IP attorney Paul Cole provides a Eurpoean view of the KSR obviousness standard — click here to read the article;
- Timothy Trainer looks at inconsistent international application of TRIPS and discusses what can be done to better protect intellectual property worldwide — click here to read the article.
- Lawrence Ebert (of IPBiz fame) draws lessons from the patenting and licensing of the transistor — click here to read the article;
- Vangelis Economou argues that a covenant not to sue should not destroy a court’s declaratory judgment jurisdiction over a patent defendant’s invalidity and inequitable conduct counterclaims and that the Federal Circuit should overturn its Super Sack decision — click here to read the article;
- Nicholas Dernick looked at sovereign immunity — click here to read the comment;
- Graham Liccardi considered the Computer Fraud & Abuse Act as a vehicle for getting federal jurisdiction of trade secret disputes — click here to read the comment; and
- Mark Petrolis argued that fair use should not be an absolute defense to a moral rights violation — click here to read the comment.