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August 14, 2007

Slow on the Draw

"The value of effort is timeliness." - Lao Tzu

Microsoft got sued for patent infringement for the upteenth time; this time, by Computer Acceleration Corporation (CAC), a unit of Acacia. The horse CAC rode was 5,933,630, carrying cargo that reduces program launch time. Microsoft aimed to hog-tie the rider, and shoot the horse, but was a tad tardy.

Judge Ron Clark in the Eastern District of Texas tossed Microsoft's motion for a second amended answer, piling on charges of inequitable conduct. Microsoft hadn't learned anything new, and just pussyfooted too long. The judge likes his rocket docket with the fuse lit.

Microsoft has already asserted claims of inequitable conduct against CAC. The importance of yet one more such claim is diminished. Still, Microsoft argues that the amendment is important because it would allow them to stretch its inequitable conduct defense even further to include intentional withholding from the PTO. It is true that an ever expanding web of allegations of wrongdoing may put CAC in an even worse light. But there is a point of diminishing returns. See generally Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1454 (Fed. Cir. 1984) (charges of inequitable conduct are “cluttering up” the patent system).

CAC argues that Microsoft’s motion should be denied because: (1) no new facts were provided to Microsoft during the deposition testimonies; (2) no factors weigh in favor of Microsoft showing “good cause” under Rule 16(b); and (3) Microsoft has not demonstrated that it could not have reasonably met the deadlines provided for amending its pleadings.

Microsoft provides no good explanation for waiting more than a month to file the request for amendment at a time when trial was fast approaching.

The court is guided by Fed. R. Civ. P. 1 which requires the court “to secure the just, speedy and inexpensive determination of every action.”

Allowing the amendment at this late date would not deter future violations of scheduling orders but would serve to encourage them. Pleading and contention deadlines established in a scheduling order pursuant to Fed. R. Civ. P. 16 are not suggestions. There has been no invitation to “hide the ball” until the last minute.

Microsoft motion denied.

Microsoft is represented in this case by Weil Gotshal & Manges on the backbench, and local frontman Clayton E. Dark, Jr., who struts so fine that he don't need no website.

Posted by Patent Hawk at August 14, 2007 11:57 PM | Litigation

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