Chief Judge Stark Grants Motion to Supplement Complaint After Certificate of Correction

August 24, 2018

Publication| Intellectual Property

In Ethicon LLC v. Intuitive Surgical, Inc., No. 17-871-LPS (D. Del. June 28, 2018), Chief Judge Stark granted the plaintiffs’ motion to file a second supplemental complaint prompted by the issuance of a certificate of correction to one of the asserted patents. The Court concluded as a general matter that it was not impermissible to supplement a pleading to take into account alleged infringement that took place after the issuance of a certificate of correction. According to the order, the plaintiffs put the defendants on notice of the certificate of correction within two weeks of its issuance and moved to supplement four months after issuance, a timeframe that the Court concluded would not cause undue prejudice given that fact discovery was ongoing and claim construction had yet to take place. The Court also stated that allowing supplementation would be more efficient than the filing of a new lawsuit.

Key Point: In the briefing on the plaintiffs’ motion to supplement the complaint, the parties disputed the significance of the change made by the certificate of correction to the patent at issue, but Chief Judge Stark stated that the defendants could take up any such contentions regarding, e.g., invalidity or claim construction during the course of the litigation.

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