C., T., Duo are grasping for straws. That is expec

C., T., Duo are grasping for straws. That is expected with the Markman hearing coming up this week. They must be very nervous. If you read through the emails in the exhibit of the court filing that ZPaul posted earlier between the attorneys their level of desperation is clearly identified by the fact that they are trying to include Entrust information after they have already been involved in this litigation for nearly 1.5 years. BR hit them between the eyes with their "Defendants also reference the denial of their IPR petitions by the PTAB as somehow justifying their delay in seeking leave to amend. More to the point, Defendants believed that their IPR petitions were going to be granted."

I believe Strikeforce could have gone the distance with Entrust for much more than they received (and I also believe that they benefited somehow from the settlement but we'll find out later). I'm 99% sure that Strikeforce was extremely confident that they would've won the Entrust countersuit but were probably concerned about the amount of time and resources it would've taken for the benefit but CTD? They are an entirely different scenario altogether. It is obvious that Blank Rome has them in their sites after the IPR denial.

Quote "Defendants also reference the denial of their IPR petitions by the PTAB as somehow justifying their delay in seeking leave to amend. More to the point, Defendants believed that their IPR petitions were going to be granted. And for some reason, Defendants believed they were justified in doing nothing with these new references until some later undefined date. Contrary to Defendants’ expectations, the PTAB wholly rejected both of Defendants’ IPR petitions. Then, with their invalidity case suddenly in tatters, Defendants sought to assert these additional prior art references. As this Court has already demonstrated, Defendants cannot justify their lack of diligence in seeking to amend their contentions on the filing of an IPR petition. Warner Chilcott Co., 2015 WL 3630970, at *8. In other words, the pending IPR petitions did not excuse Defendants from complying with the Local Patent Rules. 2 Tellingly, Defendants do not cite any opinion from the District of New Jersey to support their IPR excuse. Instead, they rely on a single Northern District of California case. See generallyKarl Storz Endoscopy-Am., Inc. v. Stryker Corp., No. 14-CV-00876-RS (JSC), 2016 WL 2855260 (N.D. Cal. May 13, 2016). The facts in that case, however, are very different than those in this case. In Karl Storz, the defendant delayed seeking to amend its invalidity contentions until a stay was lifted; a stay that was granted based solely on the filing of an IPR petition. That court, unlike this Court, routinely grants motions to stay based solely on the filing of an IPR petition.

Lastly, Defendants devote much of their argument to the issue of undue prejudice, even inserting it into their arguments regarding their own diligence. But, as this Court has frequently held, the question of undue prejudice is considered only if the party seeking leave to amend has already met the threshold requirement of diligence under L. Pat. R. 3.7.

Because Defendants fail to meet their burden of Case 2:16-cv-03571-JMV-MF showing their initial search was diligent and that their application to amend was timely once they did learn of these references, the Court need not consider undue prejudice to the non-moving party. For the foregoing reasons, Defendants’ request to amend their invalidity contentions should be denied"

.....ouch