Defendant moved to amends its affirmative defenses and counterclaims to add two new theories of inequitable conduct (both concerning allegations that the applicants concealed or misrepresented the true inventorship of pending claims to the PTO) over six months after the deadline for amendment of the pleadings and after the close of fact discovery. Ashahi Glass Co., Ltd. v. Guardian Indus. Corp., C.A. No. 09-515-SLR, Memo. Op. (D. Del. Aug. 8, 2011). Defendant’s delay was “largely unexplained” and the Court found that although the delay “is not egregious, allowing defendant’s motion at this late stage would place an unwarranted burden on the court and prejudice plaintiffs in several respects, most notably, opening discovery for the purpose of allowing plaintiffs and opportunity to respond to the new claims cannot be accomplished while maintaining the current trial date.” Id. at 6. Court, therefore, denied the motion.
Of note, Judge Robinson mentioned in a footnote that the Court is currently booked for trials through 2013 and therefore rescheduling a trial in 2011 or 2012 “would be a formidable task.” Id. at 6, n.10.