Defendant is permitted to amend its answer to assert inequitable conduct
Aerocrine AB and Aerocrine Inc. v. Apieron Inc., Civ. No.08-787-LPS, March 30, 2010.
Stark, M. J. Defendant’s motion to amend its answer is granted; plaintiff’s motion for judgment on the pleadings alleging inequitable conduct is denied.
The disputed technology involves medical devices capable of measuring nitric oxide levels in exhaled breath. Defendant alleges that deposition testimony provides the basis for alleging inequitable conduct. Plaintiff counters that the proposed amended pleading lacks the requisite specificity as required by Exergen. The court finds that the amended answer satisfies the pleading requirements of 9(b) and therefore permits the amendment and denies the plaintiff’s motion for judgment on the pleadings alleging inequitable conduct. The court notes that the question today is not whether defendant will succeed on the merits of the inequitable conduct contentions, but whether it should be permitted to put on evidence of that defense.
