Sitting by designation, Judge Bumb recently considered a motion to strike several affirmative defenses and counterclaims. In Bayer CropScience AG v. Dow Agrosciences LLC, C.A. No. 10-1045-RMB/JS (Dec. 30, 2011), plaintiff Bayer CropScience brought an infringement action against Dow Agrosciences, and Dow raised various affirmative defenses and counterclaims. In considering Bayer’s motion to strike some of Dow’s affirmative defenses and counterclaims, the court was faced with the issue of what pleading standard applied. With respect to the affirmative defenses, Judge Bumb stated: “While the Third Circuit has not yet opined as to whether Twombly/Iqbal is applicable to affirmative defenses, this Court agrees with those courts that have found Twombly/Iqbal inapplicable to affirmative defenses.” Id. at 3. Therefore, the court “review[ed] Defendant’s affirmative defenses only for sufficiency and for compliance with Rule 9(b).” Id. at 4. Under this standard, the motion to dismiss the defense of equitable estoppel was granted, but the motion to dismiss the defense of patent misuse was denied. Id. at 7-11.
Turning to the question of counterclaims, Judge Bumb noted that while counterclaims normally are subject to the rigors of Twombly/Iqbal, “[i]n the patent context . . . some courts have, whether expressly or implicitly, declined to apply the rigors of Twombly/Iqbal to defendants asserting invalidity counterclaims.” Id. at 5. Although the case at hand involved a counterclaim of unenforceability rather than invalidity, the court stated that “the same logic that led other courts to conclude that invalidity counterclaims were not subject to the heightened pleading under Twombly/Iqbal leads this Court to the same conclusion with respect to patent unenforceability counterclaims.” Id. at 7. Applying this standard to defendant’s counterclaim for a declaratory judgment of unenforceability, the court dismissed the counterclaim to the extent that it was based on equitable estoppel, but refused to dismiss the patent misuse or prosecution history estoppel aspects of the counterclaim. Id. at 11-13.