Del R. Gilbert Son Block Co. v. Allan Block Corp.

Full title: Del R. Gilbert Son Block Co., Inc. v. Allan Block Corporation

Court: United States District Court, D. New Hampshire

Date published: May 13, 2009

Civil No. 08-cv-504-PB (D.N.H. May. 13, 2009)

Opinion

Civil No. 08-cv-504-PB.

May 13, 2009

ORDER

JAMES MUIRHEAD, Magistrate Judge

Plaintiff moves to amend its complaint to add a new cause of action based upon allegations that defendant's patents have been held invalid. Defendant's objection is based on a futility argument, namely that the patents have not been invalidated. Only a number of "claims" were invalidated.

The precise allegation in the amended complaint is:

"78 . . . neither of Allan Block's patents remains in force . . .".

Neither party addressed directly whether the `236 patent is really enforceable when several of its claims have been held invalid. See Allan Block Corporation v. County Materials Corp., 2008 WL 5273730, *17 (D. Minn.). Judge Erickson said that "Allan Block does not dispute county's assertion that the `010 Patent expired . . ." Id., at *8. An allegation that they are not "in force" has a basis.

Under the circumstances, it is not clear that the amendment is futile. The motion (document no. 10) is granted.

SO ORDERED.