In a recent report and recommendation, Magistrate Judge Mary Pat Thynge recommended that several affirmative defenses be stricken. Sonos, Inc. v. D&M Holdings Inc., C.A. No. 14-1330-RGA-MPT (D. Del. Aug. 10, 2016). Of note, Judge Thynge explained that the defendants’ § 288 defense should be stricken because there was no allegation that any asserted patent “has been found invalid before the commencement of the present action.” Judge Thynge also recommended that the defendant’s equitable estoppel and unclean hands affirmative defenses be stricken for failure to allege facts supporting those defenses with the particularity required by Rule 9(b). Next, the Court recommended the striking of the defendant’s patent misuse defense, which was supported by arguments in the defendant’s answering brief, but not in allegations in the affirmative defense, itself. Judge Thynge explained, “D&M is required to assert a basis showing an anticompetitive effect in its pleadings; delegating this in its answering brief is not sufficient.” Finally, Judge Thynge explained that the defendant’s prosecution laches defense “is limited to a one sentence conclusory statement, containing no information to support the elements of unreasonable and inexcusable delay,” warranting that it, too, be stricken. The Court noted, however, that it would allow D&M leave to amend the pleadings to address these deficiencies.
Sonos, Inc. v. D&M Holdings Inc., C.A. No. 14-1330-RGA-MPT (D. Del. Aug. 10, 2016)
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