Reported / Citable
Background
Swarm Technology sued Hewlett Packard Enterprise Company in December 2024 for patent infringement. Its first amended complaint alleged infringement of claims of U.S. Patent No. 10,592,275 and all 44 claims of U.S. Patent No. 12,159,161.
Under the court’s scheduling order, Swarm served preliminary infringement contentions on May 1, 2025. Those contentions abandoned the ’275 patent and asserted only 15 specified claims of the ’161 patent. On August 14, the deadline for amended pleadings, Swarm filed amended infringement contentions and a second amended complaint adding 15 different ’161 patent claims without first seeking leave. HPE moved to strike both filings.
The Court’s Holding
The court granted HPE’s motion to strike. The scheduling order expressly required leave of court under Southern District of Texas Patent Rule 3-7 to add or amend infringement contentions after May 1, and Swarm could not use the separate pleading-amendment deadline to bypass that requirement.
Swarm did not establish good cause or diligence. Its stated reasons amounted to a misunderstanding of the local rules and scheduling order; adding 15 claims would substantially prejudice HPE by requiring renewed claim-construction analysis and related work; Swarm could have asserted those claims initially; and a continuance would delay the case and impose significant new expense. The court struck Swarm’s amended contentions and second amended complaint, leaving the first amended complaint and the claims in the preliminary infringement contentions operative.
Key Takeaways
- A deadline permitting amendment of pleadings without leave does not override a separate local-rule requirement to obtain leave to amend patent infringement contentions.
- Adding previously unasserted patent claims after preliminary contentions requires good cause and diligence under Patent Rule 3-7.
- Potential claim-construction rework, duplicated effort, delay, and expense can establish prejudice that a continuance does not cure.
Why It Matters
The order underscores that patent local rules are designed to lock in infringement theories early and prevent late-stage shifts in the claims at issue. Patent plaintiffs should identify all claims they intend to pursue in their preliminary contentions or promptly seek leave supported by a concrete showing of diligence and good cause.