Opinion
Civil Action No. 08-338 JJF.
November 21, 2008
ORDER
WHEREAS, on July 23, 2008, Defendants/Counterclaim-Plaintiffs KV Pharmaceutical, Ther-RX Corp., and Drugtech Corp. (collectively "Defendants") filed a Motion to Strike Plaintiff/Counterclaim-Defendant Lannett Company Inc.'s ("Plaintiff") Affirmative Defense of Inequitable Conduct with Respect to U.S. Patents 6,258,846 and 6,576,666 ("the `846 and `666 patents") (D.I. 62);
WHEREAS, on August 6, 2008, Plaintiff opposed Defendants' motion and alternatively sought leave to file an amended pleading (D.I. 73);
WHEREAS, on September 8, 2008, the Court referred Defendants' motion to a Special Master;
WHEREAS, on October 3, 2008, the Special Master recommended that Defendants' motion be granted, concluding that Plaintiff's inequitable conduct defenses with respect to the `846 and `666 patents did not satisfy the heightened pleading requirements of Rule 9(b);
WHEREAS, the Special Master further recommended that Plaintiff's request to file an amended pleading, insofar as it seeks to add new claims of inequitable conduct with respect to the `846 and `666 patents, should be denied without prejudice;
WHEREAS, no objections to the Special Master's Report And Recommendation have been filed;
NOW THEREFORE IT IS HEREBY ORDERED that the Special Master's Report And Recommendation on Defendants' Motion to Strike Plaintiff's Affirmative Defense of Inequitable Conduct With Respect to U.S. Patents 6,258,846 and 6,576,666 (D.I. 136) is ADOPTED.