2patent, shall constitute a continuation thereof and have effect continuously fromthe date of the original patent.Count I of the present complaint alleges infringement of the ‘325 Patent. However, underSection 252, the ‘325 Patent was surrendered “upon the issue of the reissued patent.” Thus, thecomplaint no longer identifies the proper patent-in-suit. Through this motion, Plaintiffs seek toremedy this by updating Count I of the complaint and the respective Prayer for Relief to reflectthe recent Reissue of the ‘325 Patent as Reissue Patent No. RE41,346, and to assert the claims of the Reissue Patent (i.e., claims 1-4, 6-8, 13, and 22-25) that Plaintiffs contend are infringed byNike.Pursuant to Section 252, Plaintiffs are entitled to recovery for infringement of the ReissuePatent. Claims 1-4, 6-8, and 13 of the Reissue Patent are identical to claims 1-4, 6-8, and 13 of the now-surrendered ‘325 Patent, and therefore, Plaintiffs can recover for infringement of theseclaims from the issuance of the ‘325 Patent. Indeed, Nike does not oppose Plaintiffs’ request toamend the complaint to the extent that Reissue claims 1-4, 6-8, and 13 are identical to those of the ‘325 Patent, as indicated in the letter of June 9, 2010, a copy of which is attached hereto asExhibit 2. Plaintiffs are also entitled to recovery for infringement of independent claim 22 of theReissue Patent, as well as its dependent claims 23-25, which were added during the reissueproceeding.Plaintiffs recognize that, pursuant to the Minute Entry of November 12, 2009, Plaintiffswere permitted to a file motion to amend the complaint up to and including November 16, 2009.(Docket No. 157). To amend the complaint after the expiration of the court’s scheduling orderdeadline, Fed.R.Civ.P. 16(b) provides that Plaintiffs must show “good cause.”
Trustmark Ins.Co. v. General & Cologne Life Re of Am
., 424 F.3d 542, 553 (7th Cir. 2005). Fed.R.Civ.P.16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking amendment.
. Here, because the complaint no longer identifies the proper patent-in-suit (i.e., the ReissuePatent), Plaintiffs have demonstrated good cause to modify the Court’s scheduling order.Furthermore, Plaintiffs are filing the instant Motion for Leave to File Second AmendedComplaint shortly after the issuance of the Reissue Patent. Thus, Plaintiffs are diligent.“Once ‘good cause’ has been shown for a late amendment under Rule 16(b), the Courtmust consider the application of Rule 15(a).”
Connell v. KLN Steel Prods. Co
., 2006 U.S. Dist.LEXIS 29419, *17 (N.D. Ill. 2006). Fed.R.Civ.P. 15(a)(2) allows for the amendment of pleadings upon leave of Court and declares that the “court should freely give leave when justice
Case: 1:08-cv-06584 Document #: 253 Filed: 06/16/10 Page 2 of 5 PageID #:4924