Judge Farnan: A defendant MUST avail themselves of every opportunity to plead inequitable conduct with particularity
Judge Farnan recently granted Plaintiffs’ Motion to Strike Defendants’ Motion for Summary Judgment of Unenforceability based upon defendants’ failure to plead their inequitable conduct defense with particularity; and defendants’ subsequent failure to take any action to amend their Answer. Laboratory Skin Care, Inc., et al. v. Limited Brands, Inc. et al., C.A. No. 06-601-JJF (D. Del. Aug. 17, 2009). Defendants argued that they could not have amended their answer to plead inequitable conduct with particularity before summary judgment because a crucial deposition transcript was withheld by plaintiffs until the day before discovery closed. Id. at 7. The Court disagreed noting several opportunities defendants had to obtain the necessary information to plead their current inequitable conduct defense theory with particularity, including the opportunity to move to amend after defendants received the deposition transcript or concurrently with their summary judgment motion. Id. at 8-9.