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Eleventh-Hour Motion to Amend to Add Affirmative Defense Held Timely

In Pfizer Inc., et al. v. Teva Parenteral Medicines, Inc., et al., C.A. No. 10-37-GMS (D. Del. Nov. 21, 2011), the Court granted the defendants’ motion to amend to add an obvious-type double patenting defense, filed on the last day for amendments to the pleadings under the amended scheduling order. The plaintiffs argued they would be prejudiced by the defendants’ last minute amendment, and that there was no reason for defendant’ to have waited as long as they did to amend. Id. at 3-4. The Court rejected the plaintiffs’ argument, and in a footnote reminded the plaintiffs that they chose not to oppose the defendants’ previous motion to amend the scheduling order to extend the deadline for amended pleadings. Id. at 6 n.13. Although the defendants’ motion to amend came on the last day possible under the amended scheduling order, the plaintiffs’ non-objection to the extension of that deadline undercut their claims of prejudice. “Specifically, while Teva could have sought to amend its Answer to include this defense earlier, it filed this motion within the time allotted by the court—and unopposed by the plaintiffs—for such amendments.” Id.


Pfizer Inc. et al. v. Teva Parenteral Medicines, Inc., et al., C.A. No. 10-37-GMS (D. Del. Nov. 21, 2011)

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