A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: final-infringement-contentions

As we discussed last week, people sometimes forget that parties can object to even non-dispositive rulings by a magistrate judge under FRCP 72—although I don't know whether that is what happened here.

In Boston Scientific Co. v. Micro-Tech Endoscopy USA, Inc., C.A. No. 18-1869-CFC-CJB (D. Del.), defendants moved to strike plaintiff's infringement contentions for failure to apply the Court's claim construction. The motion was referred to Magistrate Judge Burke, who denied it:

(1) With regard to Defendant's request that Plaintiffs' FICs regarding the term "breakable link... adapted to be broken[,]" be stricken, (D.I. 169 at 2), it is DENIED. The Court did not construe this term, and Defendant has not convinced the Court that Plaintiffs are …

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 …