Celgene Corporation, et al. v. Fresenius Kabi USA, LLC, C.A. No. 14-571 – RGA, December 7, 2015.
Thynge, C.M.J. Report and Recommendation that plaintiffs’ motion to dismiss counterclaims for failure to state a claim and motion to strike affirmative defenses be denied.
The court finds that defendant alleges sufficient facts to support counterclaims of improper continuation application, no entitlement to early priority date, and improper inventorship. Affirmative defenses 8 through 11 are similar to the counterclaims and are sufficiently plead. Affirmative defenses of lack of standing, improper inventorship, improper continuation application and lack of priority date are properly pled. Also a defense of laches has been sufficiently pled under count 12.