This is a new one. In Bardy Diagnostics, Inc. v. iRhythm Technologies, Inc., C.A. No. 24-1355-JDW (D. Del.), the plaintiff moved to amend to add two recently-issued patents to the case.
It filed its motion after the deadline to amend, which meant that it needed to show FRCP 16 good cause which, in this context, means that it had to show that it was diligent.
The defendant opposed the motion by arguing that the plaintiff was not diligent because (get this!) it waited too long to file its patents:. Not-at-all-shockingly, the Court did not go for that:
[Accused infringer] Bardy argues that [patentee] iRhythm could have applie[d] for these patents sooner. It does not cite to any case, however, that finds a lack of diligence in applying for or prosecuting a patent as a basis to deny leave to modify a scheduling order in court. And Bardy’s inability to identify any such case is not surprising because its argument conflates patent prosecution strategy with diligence. Rule 16 does not require a party to predict future issuance of patents or to amend pleadings based on speculative future rights. Nor does it impose rules about a party’s timing in applying for a patent. The relevant inquiry is whether the moving party acted reasonably once the basis for amendment existed. iRhythm did, so I will amend the scheduling order to permit iRhythm’s amendment request.
Bardy Diagnostics, Inc. v. iRhythm Technologies, Inc., C.A. No. 24-1355-JDW (D. Del. Feb. 17, 2026).
They get points for a creative argument, though, and now we all know the answer to a question we would never have thought to ask: whether waiting to file your patent application can show a lack of good cause to amend under FRCP 16. Of course, they may could always pull a TC Heartland by filing an appeal and showing us all how wrong we are.
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