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Judge Robinson grants leave to file second amended complaint

Judge Sue L. Robinson recently granted a plaintiff’s motion for leave to file a second amended complaint alleging induced infringement.  Takeda Pharmaceuticals U.S.A., Inc. v. West-Ward Pharmaceutical Corp., et al., C.A. No. 14-1268-SLR (D. Del. Dec. 14, 2016).  The second amended complaint alleged that the defendant induced infringement of the plaintiff’s patents through its sales personnel who encouraged healthcare providers to prescribe the accused product for an off-label infringing use.  Although the second amended complaint provided “no details concerning any of these conversations – no particulars concerning which providers told which [plaintiff] representatives of statements by which [defendant] representatives, or when these conversations supposedly occurred[,]” id. at 3-4 (emphasis in original), the Court found that the second amended complaint plausibly gave rise to a claim for inducement, and fairly put the defendant on notice of the claims against it.  The Court’s ruling was made based on the Third Circuit’s pleading standard that: “[s]o long as a plaintiff has not used ‘boilerplate and conclusory allegations,’ and has accompanied its legal theory with ‘factual allegations that make [its] theoretically viable claim plausible,’ . . . ‘pleading upon information and belief [is] permissible where it can be shown that the requisite factual information is peculiarly within the defendant’s knowledge or control.'”  Id. at 4 (quoting McDermott v. Clondalkin Grp., Inc., 2016 WL 2893844, at *4 (3d Cir. May 18, 2016)).

Takeda Pharmaceuticals U.S.A., Inc. v. West-Ward Pharmaceutical Corp., et al., C.A. No. 14-1268-SLR (D. Del. Dec. 14, 2016)

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