HYPERPHRASE TECHNOLOGIES, LLC v. GOOGLE INC.
Filing
118
ORDER granting 98 Motion to Amend counterclaims. Signed by Judge Barbara B Crabb on 3/25/08. (elc)
HYPERPHRASE TECHNOLOGIES, LLC v. GOOGLE INC.
Doc. 118
Case: 3:06-cv-00199-bbc
Document #: 118
Filed: 03/25/2008
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------H Y PE R PH R AS E TECHNOLOGIES, LLIC an d HYPERPHRASE INC., ORDER Plaintiffs, 0 6 - cv -1 9 9 - b b c v. G O O G L E INC., D efendan t. --------------------------------------------T h is patent infringement action was filed on April 12, 2006; on December 21, 2006, defendan t Google's motion for summary judgment of infringement was granted. Plaintiffs H y p e r P h r a se Technologies Inc. and HyperPhrase Inc. filed a premature appeal. In
connection with the appeal, plaintiffs entered into a court-approved stipulation in which the p arties agreed that if any of the patents asserted against defendant were asserted "in any other proceeding, or any remanded proceeding, [defendant] may assert any claim, defense, or counterclaim, including those dismissed by this agreement." On December 26, 2007, the C ou rt of Appeals for the Federal Circuit affirmed this court's decision in part and remanded th e case. The formal mandate issued on February 22, 2008.
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Dockets.Justia.com
Case: 3:06-cv-00199-bbc
Document #: 118
Filed: 03/25/2008
Page 2 of 3
O n February 20, 2008, defendant wrote plaintiffs to ask whether they would oppose a motion for leave to amend the answer to assert a new claim based on plaintiffs' license agreem ent with Microsoft. Plaintiffs advised defendant that they would oppose such a m otio n as untimely. Defendant has now moved for leave of court to amend its counterclaim. A fair reading of the parties' stipulation is that they agreed to allow defendant to assert any new claims if the case were remanded. Their agreement clearly encompasses defendant's new license claim. The only question is whether the claim is so untimely that th e usual reasons for denying amendment come into play. Plaintiffs argue that they do, saying that it is too late to add a claim that will require new discovery and perhaps a new m otio n for summary judgment. Plaintiffs' argument would be compelling were it not for the fact that the trial date has been continued until March 16, 2009. Under the circumstances, plaintiffs cannot say th at they do not have time in which to defend against the new claim. If the parties' decision to leave the summary judgment deadlines in place disadvantages plaintiffs in responding to th e new claim, they may apply to the magistrate judge for either a delay in the present deadlines or for a deadline for a new summary judgment motion, limited to the license issue.
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Case: 3:06-cv-00199-bbc
Document #: 118
Filed: 03/25/2008
Page 3 of 3
OR DER
IT IS ORDERED that defendant Google Inc.'s motion to amend its counterclaims is G R AN T ED . E n tered this 25th day of March, 2008. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge
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