Richards Layton & Finger
 

Judge Andrews Denies Motion for Leave to Substitute Claim Terms

May 31, 2017

In Acceleration Bay LLC v. Activision Blizzard, Inc., C.A. No. 16-453-RGA (D. Del. Apr. 13, 2017), Judge Andrews denied the plaintiff’s motion for leave to update its preliminary election of asserted claims. In the scheduling order, the parties agreed to a reduction of asserted claims and prior art references where the final reduction of the asserted claims and prior art references would be made from the claims and references initially asserted.

In its letter briefing to the Court, the plaintiff sought to amend its preliminary election of asserted claims after “recent developments in the inter partes review proceedings” for several asserted patents. The plaintiff also argued that it had “reserved the right to amend” its preliminary election of asserted claims. The Court disagreed, holding that the plaintiff failed to show good cause for amending its election, and denied the plaintiff’s motion. However, Judge Andrews denied the motion without prejudice, to give the plaintiff the opportunity to show good cause at a later time.

Key Points: The Court will apply the “good cause” standard to a motion for leave to serve an amended preliminary election of asserted claims where that deadline is in the scheduling order.