Judge Andrews Denies Defendant’s Motion to Withdraw Factually Impossible Admission

May 31, 2017

Publication| Intellectual Property

In Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, C.A. No. 15-915-RGA (D. Del Apr. 11, 2017), Judge Andrews denied the defendant’s motion to withdraw its admission that its accused product, Durex RealFeel condoms, comprised particles bonded to each other through intra-polyisoprene particle crosslinks and inter-polyisoprene particle crosslinks. Despite making this admission over a year earlier in response to a request for admission by the plaintiff, the defendant moved the Court for permission to withdraw the admission under Federal Rule of Civil Procedure 36(b). Specifically, the defendant argued that its admission was factually impossible according to its expert, who had opined that polyisoprene particles could not be bonded to each other through both intra-polyisoprene and inter-polyisoprene particle crosslinks.

The Court denied the defendant’s request for failing to establish, pursuant to Fed. R. Civ. P. 36(b), that withdrawing the earlier admission would “promote the presentation of the merits of the action.” Specifically, the Court explained that the defendant still had viable non-infringement arguments, would still be able to pursue invalidity theories based on its expert’s opinion that bonding through both inter-polyisoprene and intra-polyisoprene particle crosslinking was not possible, and also had other invalidity defenses on which it could rely, such as an argument that claim 1 was indefinite. Thus, while the Court admitted that the admission “might hinder Defendant’s invalidity case, the admission d[id] not foreclose it.”

Key Points: If there are alternative theories a party may pursue at trial, the Court may not need to reach the issue of prejudice under Fed. R. Civ. P. 36(b) to withdraw an admission.

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