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Judge Robinson: Should leave to amend between the liability and damages phases of a bifurcated trial be subject to Rule 15(a) or 15(b)?

Judge Robinson was recently faced with an issue of first impression implicated by her practice of bifurcating damages and liability in her patent infringement cases. SRI International Inc. v. Internet Security Systems Inc., C.A. No. 04-1199-SLR (D. Del. Oct. 4, 2011). After the liability phase of the case concluded, a damages trial was scheduled to commence later this year. Id. at 2. Defendant Symantec subsequently filed a motion to amend its answer to assert inequitable conduct. Judge Robinson noted that Symantec’s motion presented the question of “whether leave to amend between the liability and damages phases of a bifurcated patent trial is subject to the liberal standard set forth in Federal Rule of Civil Procedure 15(a) or . . . the more conservative standard set forth in Federal Rule of Civil Procedure 15(b).” Id. at 5 n.5. The answer to that question, however, is left for another day because the court determined that under either standard, Symantec’s motion would be denied. Id. at 5.


SRI International Inc. v. Internet Security Systems Inc., et al., C.A. No. 04-1199-SLR (D. Del. Oct. 4, 2011)

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