The court sua sponte struck defendant's affirmative defense to plaintiff's false marking claim. "[Defendant] states that the United States is an indispensable party to this action. But that is at odds with 35 U.S.C. §292(b), under the auspices of which [plaintiff] has brought this action. . . . [Two other affirmative defenses], which challenge the statute’s constitutionality and its conferring of litigation rights on a party such as [plaintiff], are permitted to stand."
ZOJO Solutions Inc. v. The Stanley Works, 1-10-cv-01175 (ILND May 27, 2010, Memorandum Order) (Shadur, J.)