Judge Andrews grants motion to dismiss inequitable conduct counterclaim that did not adequately plead the “who” of the allegations

Judge Richard G. Andrews recently considered plaintiffs’ motion to strike and dismiss defendants’ defenses and counterclaims related to inequitable conduct. Alza Corp., et al. v. Par Pharms, Inc., et al., C.A. No. 13-1104-RGA (consolidated) (D. Del. May 27, 2014). Plaintiffs argued that defendants did not sufficiently plead “who” committed the inequitable conduct as required by Exergen Corp. v. Wal-Mart Stores, 575 F.3d 1312 (Fed. Cir. 2009) and its progeny. Instead, defendants’ referenced only “the Applicants,” a term “loosely defined as named inventors or identified inventors or one or more of their agents or attorneys or other persons involved in the prosecution of the applications including the Prosecution Attorneys.” Id. at 2. Judge Andrews agreed that that defendants did not adequately plead “who” even though the pleading did appear to contain adequate facts: “The insufficiency of the present allegations is principally that they allege a mishmash of facts without sorting them out in relation to particular acts of particular individuals.” Id. Judge Andrews granted plaintiffs’ motion, but with leave to allow defendants to amend to correct the insufficiency.

Alza Corp. v. Par Pharms, Inc., et al., C.A. No. 13-1104-RGA (consolidated) (D. Del. May 27, 2014)

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