The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION AND ORDER OF COURT
Plaintiffs, Emcore Corporation ("Emcore") and JDS Uniphase Corporation ("JDSU") filed the instant patent infringement action against Defendant, Optium Corporation ("Optium") on March 14, 2007, asserting that Defendants accused products infringe on United States Patent No. 6,519,374 ("the '374 patent"). (Docket No. 1). On March 4, 2007, Defendant filed an Answer, Affirmative Defenses and a Counterclaim seeking a declaration of non-infringement and invalidity of the '374 patent. (Docket No. 18). A pre-trial Order was entered on August 11, 2008. (Docket No. 77). Therein, the trial dates were set for October 19-30, 2009. Thus, trial is now imminent.
The scheduling order of January 12, 2009, set the summary judgment deadline for April 29, 2009. (Docket No. 109 at Civil Action No. 7-1683*fn1 ). As contemplated by this Court, a Motion for Summary Judgment was filed by Plaintiffs on April 29, 2009. (Docket No. 79). A Special Master was appointed to rule on the same. (Docket No. 74). After the briefing was complete, on July 24, 2009, the Special Master filed his Report and Recommendation on Plaintiffs' Motion for Summary Judgment. (Docket No. 100). The Special Master recommends granting Plaintiffs' Motion for Summary Judgment that: 1) Optium's accused products satisfy the "mixer" and "double-balanced mixer" limitations of the asserted claims; and 2) Optium's accused products infringe the asserted claims of the '374 patent.
On July 30-31, 2009, Optium filed the following motions:
1. Motion for Leave to file Summary Judgment (Docket No. 107);
2. Motion for Leave to File an Amended Answer (Docket No. 108); and
3. Motion in Opposition to Referral of Motion for Summary Judgment Against JDSU to Special Master (Docket No. 109).
Plaintiffs have filed responses in opposition thereto. (Docket Nos. 121, 130, 131). The issues are now ripe for review.
Amendments to pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that after a responsive pleading has been filed, a party may amend its pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Grounds that may justify a denial of leave to amend include "undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citations omitted). "In assessing 'futility,' the district court applies the same standard as applies under Rule 12(b)(6)." Id. "Futility means that the amended complaint would fail to state a claim upon which relief could be granted, a determination made under the Fed. R. Civ. P. 12(b)(6) standard of legal insufficiency." Mid-Atlantic Equip. Corp. v. Cape Country Club, No. Civ. A. 97-287, 1997 WL 535156, *5 (E.D. Pa. Aug. 8, 1997), aff'd, 172 F.3d 860 (3d Cir. 1998), citing In Re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
Additionally, Rule 16(b)(4) permits this Court to modify a scheduling order "only for good cause." Fed. R. Civ. P. 16(b)(4).
III. MOTION FOR LEAVE TO FILE AMENDED ANSWERS (Docket No. 108)
The Motion for Leave to Filed Amended Answer seeks leave to assert the "affirmative defense of release, covenant not to sue, and license to Plaintiffs' infringement allegations of patent infringement." (Docket No. 108-11, p. 2). I will deal with Defendant's Motion for Leave to File ...