A Blog About Intellectual Property Litigation and the District of Delaware


Judge Burke granted a motion to strike yesterday where the plaintiff attempted to add indirect infringement allegations in final infringement contentions, but had not pled them in the complaint.

Per Judge Burke:

It is undisputed that Plaintiffs have never pleaded indirect infringement of these patents, (D.I. 170 at 1), and so any portion of their [final contentions] that relate to that subject matter are simply about infringement claims that are not a part of this case.

He also preemptively denied any future request to amend the complaint as coming too late:

Although they have not filed a formal motion seeking to amend their currently operative complaint to include such [indirect infringement] claims, to the extent Plaintiffs suggest they would do so in the future, any such motion would be denied. The Scheduling Order set the deadline for amendment of pleadings as June 12, 2020, (D.I. 29 at 2), and we are now more than four months past that deadline (and were more than two months past that deadline during briefing on this Motion). In light of this, Plaintiffs could not demonstrate good cause to alter that deadline now, as they have not been diligent in moving to amend . . .

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