In re: NeuroGrafix (‘360) Patent Litigation (13-md-02432).

Judge Stearns denied plaintiff’s motion to amend the complaint to add a principal-agent theory of direct infringement in a long-running multi-district litigation originally filed in 2012. Discovery in the matter was extended to August 2017, with the judge admonishing the parties that remaining discovery was to focus on new issues; Judge Stearns granted a motion to quash subpoenas directed to defendant BrainLab’s customers in September, noting that NeuroGrafix had been aware of its inducement theory of infringement for years and had no justification for waiting until the close of discovery to pursue that theory.  NeuroGrafix subsequently moved for leave to file an amended complaint, citing newly discovered evidence that BrainLab provided compensation in the form of dinners, drinks and paid consulting opportunities to neurosurgeons.  NeuroGrafix asserts that, as a result of these payments (which range from one hundred to several thousand dollars), a principal-agent relationship was formed whereby BrainLab directed  or controlled the doctors’ performance and the doctors’ actions could thus be imputed to BrainLab pursuant to Akamai Techs. V. Limelight Networks, 797 F.3d 1020 (Fed. Cir. 2015).  Judge Stearns found that the proposed complaint, which asserted that “BrainLab intends for Neurosurgeons to carry out each step” of the asserted claim was asserting induced, not direct, infringement, and NeuroGrafix had already been denied the opportunity to belatedly pursue such a theory.

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