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