Denial by Spelling Error: "Argument Only a Patent Lawyer Could Love"
Judge Shadur, on the Court's own motion, struck the portions of defendant Biorigin's Answer that denied plaintiff's claims because plaintiff misspelled Biorigin – spelling it “Biorgin” instead of “Biorigin.” The Court noted that a denial based upon misspelling was an argument “only a patent lawyer could love.” And the Court explained that, despite plaintiff's misspelling, Biorigin understood that it was the intended target of plaintiff's complaint.
The Court also struck Biorigin's lack of personal jurisdiction, insufficient service and insufficient process affirmative defenses. The Court held that by filing a counterclaim, Biorigin affirmatively invoked the Court's jurisdiction, forfeiting these affirmative defenses.
As to Biorigin's lack of standing affirmative defense, the Court noted that it was pled on information and belief and required that Biorigin, should it find facts to support its defense, file a motion with such facts as quickly as possible because standing should be addressed as early as possible.
