Judge Sue L. Robinson recently granted plaintiff’s motion to dismiss defendant’s invalidity counterclaim but denied plaintiff’s motion to strike the corresponding affirmative defense. Internet Media Corporation v. Hearst Newspapers, LLC, C.A. No. 10-690-SLR (D. Del. Sept. 6, 2012). Defendant pled that the patent-in-suit was invalid “for failing to comply with one or more of the requirements for patentability set forth in Title 35 of the U.S. Code, including, but not limited to, §§ 101, 102, 103 and 112.” Id. at 2. Noting that, since Twombly and Iqbal, it is clear that a “counterclaim must set forth sufficient facts to give rise to a plausible claim for relief[,]” Judge Robinson held that defendant’s counterclaim did not contain “such requisite facts” and granted plaintiff’s motion to dismiss, with leave to amend. Id. at 3-4. However, because an affirmative defense “must merely provide fair notice of the issue involved[,]” Judge Robinson denied plaintiff’s motion as to defendant’s affirmative defense of invalidity. Id. at 5.
Internet Media Corporation v. Hearst Newspapers, LLC, C.A. No. 10-690-SLR (D. Del. Sept. 6, 2012)[scribd id=105485763 key=key-1crqh7i8ttsr9nv83drd]