How to Lose Opposing a Motion for Leave to Amend Infringement Contentions

This afternoon I’m working on my first sur-sur-sur-reply, which per some rule someplace simply must be written outside with the aid of some Shiner Bock. But while enjoying the sunshine I also enjoyed this opinion which provides some additional clarification on the always interesting topic of when infringement contentions can be amended. And, more importantly, what conduct by a defendant – which was doing so well just yesterday – kneecapped its ability to oppose such a motion, and what conduct by parties does Judge Gilstrap just really not like? You’ll want to take notes here.

Another juicy contentions amendment/sanctions order

So shoot me if I’m off topic. My engineering student (who is still looking for an internship in electrical and computer engineering this summer, if you know anyone) comes home from Baylor Thursday night for Easter and cooks a prototype of his new “folded steak” recipe (he cut an 8 oz. filet partway multiple times, unfolds it to cook, then folds it again over some kind of herbed butter because no one needs to live forever). It worked so well he made eight more for the whole family Saturday night.

You know what ALSO worked well recently? The plaintiff’s motion to amend its infringement contentions which not only worked – the defendant’s related motion for sanctions was denied as well. (The cross motion for sanctions for filing a motion for sanctions was also denied because of course).

Amending Contentions to Add Products and DOE arguments

Orders passing on motions to amend infringement or invalidity contentions are always of interest, since you want to know which fact situations will and won’t permit contentions to be changed.  In a recent case the court granted the plaintiff’s motion for leave to amend its contentions to add additional allegedly infringing products and doctrine of equivalents (DOE) arguments based on deposition testimony obtained in the case.