Wednesday, June 26, 2013

Inequitable Conduct Pleading Requires Identification of “Specific Individual Who Acted Inequitably”

The magistrate judge recommended granting plaintiff's motion to dismiss defendant's inequitable conduct claims for failing to sufficiently allege who committed the conduct and rejected defendant's proposed amendment. "The defendant responds that it properly identified the individuals as '[two inventors], [plaintiff], and/or their counsel.'. . . Merely removing the 'or' from the pleading does not remedy the defect. The list of possible individuals includes [plaintiff], which, as a corporation, cannot be the specific individual who acted inequitably. It includes two specific individuals and other individuals unspecified by name or in number. This pleading does not identify the specific individual who committed the alleged inequitable conduct, which is a required element of such a pleading."

SurfCast, Inc. v. Microsoft Corporation, 2-12-cv-00333 (MED June 21, 2013, Order) (Rich, M.J.).

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