Diligence Required to Amend Invalidity Contentions Assessed from Disclosure of Proposed Constructions

The court denied defendants' motion to amend their invalidity contentions three months after claim construction. "For most of the constructions that differed from [defendant's] proposed constructions, the Court simply adopted the constructions proposed by [plaintiff]. . . . Therefore, [defendant] was aware of the risk that the Court could adopt these constructions . . . yet it waited until more than a year later to seek amendment of its invalidity contentions. . . . [Defendant] notes that a few of the Court’s claim constructions differ from those proposed by both parties. However, [it] does not state that it is these particular constructions that necessitate amending its invalidity contentions. . . . [E]ven assuming it was proper for [defendant] to wait until the Court’s claim construction order was issued before seeking amendment, [it] was not diligent in seeking amendment once that basis for amendment was discovered."

Verinata Health, Inc. et al v. Sequenom, Inc. et al, 3-12-cv-00865 (CAND February 26, 2014, Order) (Illston, J.)