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Copyright (c) 2010 Intellectual Property Law Section of the State Bar of Texas
Texas Intellectual Property Law Journal

Article: Particularizing Patent Pleading: Pleading Patent Infringement in a Post-Twombly World

Spring, 2010

Texas Intellectual Property Law Journal

18 Tex. Intell. Prop. L.J. 451


Jonathan L. Moore*


The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief.

This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation.

As courts begin to apply the new plausibility pleading regime, this article argues that they should seize the opportunity to rein in abusive patent litigation by requiring particularized allegations of infringement. Adopting this regime effectuates Twombly and Iqbal, reduces the number of nuisance-value patent infringement suits, and begins to address the problems that cause the patent system to inhibit, rather than promote, progress in science and the useful arts.

I. Introduction
The theory behind the patent system in the United States is simple. In exchange for disclosing a novel, non-obvious, and useful invention to the public, an inventor receives the ability to exclude others from using that invention for twenty years. 1 This "carefully crafted bargain" 2 is supposed to stimulate innovation and "promote the progress of science and useful arts." 3

The operation of the patent system, however, is anything but simple. For a patent to issue, an application must endure a lengthy and complicated examination ...
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