I pasted excerpts from Doc 178 which I uploaded to box.net. Not sure exactly what the correction to their 737 patent was without comparing the old to the new. Any takers with a few hours to spare? Pretty cool that DM now feels they can add it to their case against these CO defendants.
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FACTUAL BACKGROUND
On November 2, 2009, e.Digital filed its original Complaint for patent infringement of
U.S. Patent No. 5,491,774, entitled “Handheld Record and Playback Device with Flash Memory”
(the ‘774 Patent). On or around January 19, 2010, counsel for Plaintiff e.Digital received a
Certificate of Correction from the USPTO for its related patent entitled “Method for Recording
Voice Messages on Flash Memory in a Hand Held Recorder” (the ‘737 Patent). e.Digital now
seeks leave to amend its Complaint to add a patent infringement claim related to the ‘737 Patent
and, therefore, bring claims for both patents against the Defendants in one action. e.Digital seeks
to assert this new patent infringement claims less than one month after receiving the correction
from the USPTO.
B. There Is No Undue Delay or Bad Faith.
e.Digital’s motion to amend is not untimely. With respect to the ‘737 Patent, e.Digital is
seeking to add a patent infringement claim related to the ‘737 Patent approximately three weeks
after receiving the Certificate of Correction of that patent from the USPTO, which is only three
months after the filing of the original Complaint and before most of the Defendants in this case
have answered. The additional requested amendments, including the increased detail about
e.Digital’s infringement allegations and the correction of party names, follows approximately
five weeks after the parties’ Rule 16 Conference, in which these issues were discussed and this
Court recommended that e.Digital amend its Complaint. (Reporter’s Transcript at 21:23–22:4).
Further, there is no bad faith or dilatory motive on the part of e.Digital’s decision to (i) add the
related Patent only after receiving the correction it sought from the Patent Office and (ii) provide
a more detailed and accurate Complaint. These amendments will facilitate the efficient
resolution of all related patent infringement claims by e.Digital against the Defendants.
