Apotex, Inc. and Apotex Corp. v. Senju Pharmaceutical Co. Ltd, et al., C.A. No. 12-196 SLR, February 7, 2013

Robinson, J.  Defendants’ motion for partial dismissal is granted in part and denied in part.

Plaintiff moved to dismiss defendants’ counterclaims and strike affirmative defenses relating to invalidity and unenforceability.  The motion was granted in part and denied in part.  The pleading standards set forth in Twombly and Iqbal apply to counterclaims of invalidity.  Defendants’ counterclaims do not allege sufficient facts to pass under these pleading standards.  Defendants’ affirmative defense of invalidity, although insufficient to survive as a counterclaim, is sufficient to survive a motion to strike in the form of an affirmative defense.  Defendants’ assertion of inequitable conduct does not meet the pleading standard required by Exergen.  Defendants’ unenforceability counterclaim and affirmative defense are, respectively, dismissed and stricken.