Inequitable conduct amendment is permitted after amendment deadline
Bigband Networks, Inc. v. Imagine Communications, Inc., Civil Action No.07-351-JJF, July 20, 2010.
Farnan, J. Defendant’s motion to amend its answer and counterclaims is granted. Plaintiff’s motion to dismiss the amended inequitable conduct counterclaims is denied.
The technology relates to increasing the amount of data that can be offered by a cable television provider without having to change the physical infrastructure of a cable distribution system. Defendant’s motion to amend was filed after the October 29, 2009 deadline on December 7, 2009. The court finds that defendant was diligent in that it filed its motion within weeks of learning the additional information it seeks to add. The court further finds plaintiff will not be prejudiced despite the fact that key depositions have already taken place, noting that much of the new information was supplied by these witnesses in the first instance. Also, no dilatory motives were found, and the court is not persuaded the amendment would be futile. The court denies plaintiff’s motion to dismiss after finding that the prior art cited and the allegations contained in the amended answer are sufficient to state a claim and contain the requisite particularity.
