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Judge Andrews Allows Amendment of Complaints to Assert Additional Patents Against Existing Defendants

Judge Andrews recently granted a patent plaintiff’s motion to file amended pleadings, filed two days before the scheduling order’s deadline “to amend of supplement the pleadings.” “The main thrust of the amended pleadings would be to assert some of the four asserted patents, previously unasserted again some of the seven of the defendants, against those defendants.” HSM Portfolio LLC, et al. v. Fujitsu Ltd., et al., C.A. No. 11-770-RGA, Order at 1 (D. Del. Aug. 20, 2013). Judge Andrews found that “[w]hile there are indeed issues concerning delay and unfair prejudice, I believe that the case is still at a fairly early stage, and any issues of prejudice can be dealt with by extending the schedule.” Id.

Judge Andrews went on to address arguments raised by individual defendants specific to their own cases. In this context, he found that:
1. Two patents possibly subject to a laches defense would be better dealt with “at a later stage of the case”
2. The fact that additional patents would “not generate much in the way of damages” did not demonstrate futility
3. Plaintiffs had not “pleaded facts sufficient to support the argument that Spansion is an agent of [defendant] AMD. Thus, while I will allow the amendment, I expect that AMD will file the motion to dismiss that it has proffered.”
In addition to granting the motion to amend, Judge Andrews also ordered the parties to meet and confer and submit a status report on scheduling within four weeks and ordered that “scheduling deadlines relating to the defendants who opposed the motion to amend . . . during the next six weeks (or until there is an agreed-upon schedule, whichever occurs later)” would not be enforced. Id. at 1-2.

HSM Portfolio LLC, et al. v. Fujitsu Ltd., et al., C.A. No. 11-770-RGA, Order (D. Del. Aug. 20, 2013).

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