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

Plaintiff seeks permission to file a Third Amended Complaint alleging willful infringement against defendants.  Only one of the defendants has responded contending, among other things, that leave should not be granted because plaintiff did not move for a preliminary injunction as required by Seagate and the claim construction rendered by the PTO differs from the construction rendered by this Court in related litigation involving the patents-in-suit making plaintiff’s claim futile.  Finding plaintiff’s claim to be well pled, the Magistrate grants the motion to amend.  There is no per se requirement that plaintiff seek a preliminary injunction before raising a willful infringement claim.  Nor is there a per se rule that reexamination proceedings preclude a plaintiff from asserting a claim for willful infringement.