Digimarc Adds Three More Patents to Case Against Shazam
Digimarc has filed a Second Amended and First Supplemental Complaint [PDF] in its case against Shazam. Compared to the original complaint, this latest complaint adds three new patents to the case: U.S. Patent Nos. 6,829,368 [PDF]; 7,562,392 [PDF]; and 7,693,965 [PDF].
Why is it an amended and supplemental complaint? The answer traces back to the Federal Rules of Civil Procedure (FRCP). FRCP 15(a) governs amendments to the pleadings and does not restrict the nature of the amendment. FRCP 15(d) governs supplemental pleadings, which are for "transactions or occurences or events which have happened since the date of the pleading to be supplemented." In this case, U.S. Pat. No. 7,693,965 issued April 6, 2010 -- after the original complaint (but one day before the First Amended Complaint was filed). Thus, the addition of the '965 patent in the most recent complaint is a "supplement" to the original complaint.
Another common situation in patent litigation that calls for a supplemental, rather than an amended, pleading is reexamination. When a patent in suit is subject to reexamination, and a reexamination certificate issues during the pendency of the lawsuit, then the proper way to allege causes of actions or defenses based on the reexamination is by supplemental amendment under FRCP 15(d), as I teach in my reexamination course for Patent Resources Group.
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