Claims in fourth amended complaint survive motion to dismiss
Xpertuniverse, Inc. v. Cisco Systems, Inc., Civil Action No.09-157-RGA, January 20, 2012.
Andrews. J. Defendant’s motion to dismiss certain claims in plaintiff’s fourth amended complaint or, in the alternative, to strike is denied.
The court had already granted plaintiff leave to amend and file a third amended complaint “with no further amendments.” While resolving a discovery dispute, the court granted plaintiff leave to amend a fourth time to identify, with finality, the specific products at issue. The 3rd and 4th amended complaints allege infringement by defendant’s software platforms. The amendments identify 7 additional products launched or renamed since the commencement of this action that infringe the patents-in suit and/or are based on plaintiff’s misappropriated trade secrets. The parties dispute whether a prior judge had granted leave to amend, but this court would have permitted the amendment in any event due to the absence of bad faith or evidence defendant has been prejudiced. The court draws a line at October 11, 2011, as a cut-off date for any products alleged to infringe, since no claim relief for products still in development can be granted. The court declines to strike the phrases “including but not limited to” and “products featuring the same or similar functionality” in its infringement allegations which were present and not objected to in the original complaint and where prejudice has not been shown.
