Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Plaintiff brings suit alleging infringement by defendant of four U.S. patents.  The same patents are also asserted in two other actions before the Court.  Defendant seeks to amend its answer to the first amended complaint to add the same claims of inequitable conduct previously raised in the companion litigation.  Defendant contends that it should be allowed to amend its answer since plaintiff had been aware of the defenses for nine months.  Defendant explains that it did not initially duplicate the defenses in this litigation since at the time it claims it was unnecessary to do so because if the patents-in-suit were held invalid and unenforceable in the companion litigation, the outcome would apply equally in this one.  Events have transpired in the companion litigation such that a stay has been issued until the Court can resolve a pending motion.  Due to the stay, the cases are no longer on the same trial schedule and it is unknown whether the inequitable conduct claims pled in the companion case will ever be heard.  Thus, defendant seeks to modify the pleadings in the instant matter to allege inequitable conduct.  Defendant’s defenses are directed to issues of non-disclosure and inconsistent representations made during prosecution of the patents-in-suit.  Finding that defendant’s allegations meet the requirement of Rule 9(b), the Court grants defendant’s motion to amend.