A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Unclean Hands

Slowly .... slowly .... no sudden moves
Slowly .... slowly .... no sudden moves AI Generated, displayed with permission

We've all said things we'd like to take back. Maybe it was something hurtful, said in a moment of anger to a loved one. Maybe it was a joke that landed like a brick in a toilet. Maybe it was "no band will ever reach the artistic heights of Green Day in their prime."

Maybe it was just a moderately incorrect pleading.

Last week Judge Andrews reminded us all that, at least in the latter case, you can't just ask to take it back. Surprisingly, it also teaches us that this can be a good thing.

The plaintiff in Allergan USA, Inc. et al v. Aurobindo Pharma Ltd …

Hand Washing
Tim Mossholder, Unsplash

In an opinion on Friday, visiting Judge Stephanos Bibas of the Third Circuit pointed out a split in District of Delaware cases regarding whether a party can bring unclean hands counterclaims in patent cases:

Nor does TexasLDPC persuade me this declaratory-judgment counterclaim fails as a matter of law. True, courts disagree whether “unclean hands” can support a declaration that a patent is unenforceable. Compare In re Gabapentin Patent Litig., 649 F. Supp. 2d 340, 348 (D.N.J. 2009) (concluding it cannot), and Kimberly-Clark Worldwide, Inc. v. Cardinal Health 200, LLC, 2012 U.S. Dist. LEXIS 104983, at *2–3 (D. Del. Jul. 27, 2012) (same),[ ]with The Meds. Co. v. Teva Parenteral Meds., Inc., 2011 WL 13141923, at *1 n.2 (D. Del. Oct. 6, 2011) (denying motion to dismiss or strike unclean hands counterclaim).

Judge Bibas sided with the cases holding that "unclean hands" is a proper counterclaim in a patent action:

Still, I will not stop Defendants from demanding a declaratory judgment about the unclean-hands doctrine. In my view, I may grant such relief. See Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004, 1025–26 (Fed. Cir. 2008) (“[A] district court ...