Abbott Diabetes Care Inc., v. Roche Diagnostics Corp. (PDF) 2007 U.S. Dist. LEXIS 59161 Decided July 26, 2007 Judge Jenkins Abbott filed this patent infringement suit against Roche and Bayer Healthcare in August of 2005. The close of discovery was scheduled for Sept. 12, 2007. Before the court was a motion from Abbott to accuse additional Bayer products of infringement. Judge Jenkins denied this motion. The Northern District of California has local patent rules. Patent Local Rule 3-6 states “that a partyââ?¬â?¢s preliminary infringement contentions ‘shall be deemed that partyââ?¬â?¢s final contentions.'” A party may only amend its preliminary infringement contentions 2 ways in ND Cal. First, a party may amend without leave from the court if it does so within 30 days of the claim construction order. Second, the party must show “good cause” for leave to amend its preliminary infringement contentions if it wants to do so outside of the 30 day window. See Patent L.R. 3-7. Good cause is construed conservatively:

Unlike the liberal policy for amending pleadings, the philosophy behind amending claim charts is decidedly conservative, and designed to prevent the ââ?¬Ë?shifting sandsââ?¬â?¢ approach to claim construction. LG Electronics Inc. v. Q-Lity Computer Inc., 211 F.R.D. 360, 367 (N.D. Cal. 2002).

First, Judge Jenkins analyzed whether Abbott had shown good case for leave to amend. Abbott found out about the new products approximately around the beginning of 2007. Judge Jenkins found Abbott’s assertion of diligence to be unwarranted. Abbott admitted that it did not test the allegedly infringing Bayer products until May of 2007 and offered no adequate explanation for the 5 month delay. Second, Judge Jenkins determined that granting Abbott’s leave to amend would prejudice Bayer. The prejudice is based mostly on the short time left for discovery. Motion denied.

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