Judge Lynn issued an Order (available here) in RXPress Pharmacy v. Afgin Pharma allowing the amendment of infringement contentions. The Court set forth the applicable standard as follows:
Infringement contentions may be amended upon a showing of good cause. Am. Misc. Order 62, R. 3-7. Good cause may include newly discovered accused instrumentalities, newly discovered bases for claiming infringement, or newly discovered prior art references. Id. A party seeking amendment must state that the newly discovered accused instrumentalities, bases for claiming infringement, or prior art references were not known to that party prior to the motion despite diligence in seeking them. Id. In determining whether good cause exists, courts consider: (1) the reason for the delay and whether the party has been diligent; (2) the importance of what the court is excluding and the availability of lesser sanctions; (3) the danger of unfair prejudice; and (4) the availability of a continuance and the potential impact of a delay on judicial proceedings.
Applying this standard, Judge Lynn found that leave should be granted:
Here, Defendant requested leave to amend based on what Defendant contends are newly discovered prescription pads, prescriptions, and instructions. The amendments to Defendant’s infringement contentions are important, particularly to infringement and damages calculations, and Plaintiff will not be unfairly prejudiced because Plaintiff will have a fair opportunity to address the infringement contentions. Finally, the amendment should not delay judicial proceedings. Neither party argues that allowing Defendant to amend its infringement contentions will cause any delay in the case schedule.