Inequitable conduct defense fails as untimely
Laboratory Skin Care, Inc., et al. v. Limited Brands, Inc., et al., Civil Action No. 06-601-JJF, August 17, 2009.
Farnan, J. Plaintiffs’ motion to strike Defendants’ motion for Defendants’ motion for summary judgment of unenforceability is granted.
The patent-in-suit relates to formulations for cleansing and moisturizing the skin. The Court finds that Defendants have failed to plead inequitable conduct with sufficient particularity. The motion for summary judgment was filed after the deadline for amending pleadings. The Court rejects Defendants’ argument that they could not have plead inequitable conduct sooner. The “highly material” file histories were publicly available. Defendant had other opportunities to amend but did not. Plaintiffs would be unfairly prejudiced if the Court allowed Defendants to amend after close of discovery. Defendants are precluded from relying on the theory of inequitable conduct as set forth in their motion for summary judgment.
