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Judge Andrews grants motion to dismiss inequitable conduct claims, cautions against overuse of emphatic text tools

In Unimed Pharmaceuticals LLC, et al, v. Perrigo Company, et al., C.A. No. 13-236-RGA (D. Del. Jan. 6, 2015), Judge Richard G. Andrews granted plaintiffs’ motion to dismiss or strike defendants’ inequitable conduct counterclaims and defenses.

As a preliminary matter, the Court held defendants did not have to seek leave to file these claims and defenses.  While the Court had previously denied leave to amend with inequitable conduct allegations, the current allegations were timely responses to plaintiff’s newly amended complaint and leave was not required.  Id. at 1.

However, the Court granted plaintiffs’ current motion, finding that defendants had not plausibly alleged that false or misleading statements were made by an expert witness, the inventor, and prosecuting attorneys.  See id. at 3-5.

The Memorandum Order also counsels against the overuse of text tools for emphasis.  The Court observed that defendants’ “mixture of underlining and the use of bold, italic, and bold italic fonts” in its pleading and briefing did not cure a lack of brevity and cohesion in the papers.   Id. at 2.

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