Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Loyola University's and the Chicago Intellectual Property Alliance's annual IP Day In Chicago is next week, Tuesday, November 3 at the law school, 25 East Pearson Street in Chicago.  This is a do not miss event every year.  This year's program includes a keynote speech by the Northern District of Illinois's Judge Kennelly and impressive panels discussing topics including the new proposed generic top-level domains and protecting patents and trade secrets and policing false advertising.  Click here for a brochure with more details and registration information.

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SPSS Inc. v. Nie, No. 08 C 66 (N.D. Ill.) (Darrah, Jr.).

The parties recently settled this trademark dispute shortly before trial.  For more on the parties' history and the settlement, click here for Chicago Tribune reporter and Chicago Law blogger Ameet Sachdev's reporting on the case in the Tribune, and click here for more coverage of the case in the Blog's archives.

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Frayne v. Chicago 2016, No. 08 C 5290, Slip Op. (N.D. Ill. Oct. 2, 2009) (Kennelly, J.). 

Judge Kennelly denied defendants Chicago 2016's and the United States Olympic Committee's ("USOC") motion for summary judgment regarding its Stevens Act and Anticybersquatting Consumer Protection Act ("ACPA") claims regarding plaintiff's www.chicago2016.com website. And the Court granted defendants summary judgment as to plaintiff's federal and state constitutional claims, and plaintiff's laches defense. Plaintiff registered the Chicago2016.com domain in 2004, and after the sale, the domain registrar maintained a parking page on the site which included advertising links. Revenues for the links went to the registrar, not plaintiff.

Stevens Act*

The Court held that the parking page was commercial. But there was a question of fact as to whether plaintiff "used" the trademark, in this case the domain, for commercial purposes as required by the Stevens Act. Plaintiff did not receive revenues from the parking page and it was even unclear whether plaintiff knew of the parking page or consented to the registrar's use of the parking page.

The Court also analyzed whether Chicago 2016 was a mark that fell within the Stevens Act. While city-plus-Olympic-year combinations were not automatically protectable marks within the scope of the Stevens Act, certain city-plus-Olympic-year combinations can acquire an association with the USOC and the Olympics. Chicago 2016 likely gained that association by April 2007 when the USOC picked Chicago as a 2016 Olympic candidate. But the parties did not brief the issue of when the association occurred, so the determination required further proceedings.

ACPA

The ACPA claim was not ripe for summary judgment because it depended upon a determination that Chicago 2016 was a protected mark pursuant to the Stevens Act which the Court had held required further proceedings. Additionally, there was a question of fact as to whether plaintiff had a bad faith intent to profit from the Chicago 2016 mark.

Laches

The Court granted defendants summary judgment on plaintiff's laches claim. Plaintiff argued that if he had been aware of defendants' intent to pursue this suit, he would have challenged defendants' Chicago 2016 mark in the Patent & Trademark Office. But defendants second Chicago 2016 mark application was published concurrently with their first threat to take action against plaintiff. Plaintiff did not, however, challenge that application. No reasonable fact-finder could find plaintiff was prejudiced in those circumstances.

Constitutional Claims

The Court granted defendants summary judgment as to plaintiff's constitutional claims based upon the Noer-Pennington doctrine. Noer-Pennington protects a party's right to file a lawsuit so long as the suit is not a sham. Defendants' claims regarding their Chicago 2016 mark were backed by precedent. Defendants cited several cases in which WIPO ruled for Olympic organizations regarding city-plus-Olympic-year combination marks. 

* For more on the Steven Act, which grants the USOC absolute rights in certain Olympics-related trademarks click here. 

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SPSS Inc. v. Nie, No. 08 C 66, Slip Op. (N.D. Ill. Aug. 19, 2009) (Darrah, J.).*

Judge Darrah granted plaintiff SPSS's motion to strike defendants' jury demand on their counterclaim. Defendants' claims for an injunction and destruction of items bearing the trademark were equitable and, therefore, not triable by a jury. And defendants' claim for attorney's fees is also not triable by a jury. 

The remaining claims for an accounting of SPSS's profits and a trebling of actual damages could be legal claims warranting a jury trial, but defendants had repeatedly characterized their claims as equitable unjust enrichment claims. And defendants could not claim actual damages from a breach of contract claim because the license that governed the parties' relationships was royalty-free. Defendants' counterclaims were, therefore, equitable and not triable to a jury.

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Here are several stories and updates, as well as a new IP blog:

• At Patently-O, Dennis Crouch covers the Federal Circuit decision in the appeal from the Northern District of Illinois case SourceOne Global Partners, LLC v. KGK Synergize, Inc. -- Click here for Crouch's post on the appeal and here for my post on the underlying decision.
   
• The latest installment of Doug Lichtman's IP Colloquium is available -- click here to listen.  Lichtman and his guests from Microsoft, Paramount Pictures and MySpace discuss the protection of content in the digital age.  As always, it is an excellent listen and CLE credit is available.
   
• Seattle Trademark Lawyer Michael Atkins has another great post up about Olympic trademarks, this time featuring an article that ran in the Chicago Tribune (here) and LA Times (here) quoting both Atkins and me.
   
• California attorney and mediator Erica Bristol has started the IP Watchtower blog.  The blog covers all facets of intellectual property and the initial posts suggest it will be a great read.  I have added it to my feed reader.

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Se-Kure Controls, Inc. v. Diam USA, Inc., No. 06 C 9845, Slip. Op. (N.D. Ill. Sep. 18, 2009) (Guzman, J.)

Judge Guzman granted defendant’s motion for summary judgment of obviousness in this patent dispute regarding a retractable tether alarm system. The Court held that the asserted prior art ‘805 patent was analogous prior art based upon the Graham test. The inventor of the patent-in-suit was attempting to solve the problem of telephone wires “laying all over” in stores. And the ‘805 patent, to a retractable reel assembly for telephone wires would have been relevant to the inventory analysis. The Court also noted that prior art need not be in the same field to be analogous. The Court held that the ‘805 patent combined with the ‘098 patent’s alarm triggering and sensing system taught every element of the patent-in-suit for two reasons:

1. Plaintiff’s denial of defendant’s statement of material fact that the prior art ‘805 and ‘098 patents taught all elements was denied without citing any factual proof. Such a denial is equivalent to an admission.
    
2. A review of the ‘805 and ‘098 patents showed each element of the patent-in-suit, only a combination of the ‘098 patent’s alarm system with ‘805 patent’s the retractable reel was required.

The Court then held that combining the ‘805 patent’s retractable telephone cord reel with the ‘098 patent’s alarm triggering and sensing system rendered the patent-in-suit obvious. Plaintiff’s expert declaration stating that neither the prior art nor the security field generally evidenced any motivation to combine the prior art patents, did not persuade the Court. The expert’s statements were conclusory and KSR expressly stated that prior art need not be in the same field as the patent-in-suit.

Finally, plaintiff’s secondary consideration evidence regarding commercial success was not sufficient. Plaintiff offered no proof that its commercial success flowed from the merits of its invention.

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More Cupcakes, LLC v. Lovemore LLC, No. 09 C 3555, Slip. Op. (N.D. Ill. Sep. 29, 2009) (Kocoras, J.)

Judge Kocoras denied defendants (collectively “Lovemore”) Fed. R. Cir. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction and Fed. R. Cir. P.12(b)(6) motion to dismiss the individual Lovemore defendants’ (collectively "Lovemore individuals") based upon the fiduciary shield doctrine in this Lanham Act dispute regarding plaintiff More Cupcake’s LOVE MORE mark for use on t-shirts. The Court did, however, grant Lovemore’s §1404 motion to transfer the case to the Eastern District of New York.

The parties agreed that the Court lacked general jurisdiction and argued only specific jurisdiction. The Court held that it had specific jurisdiction based upon the effects test. Lovemore’s alleged infringing acts were aimed at More Cupcakes in Illinois when Lovemore approved sales of allegedly infringing t-shirts to Illinois addresses after being warned of the alleged infringement in a Patent & Trademark Office proceeding and in settlement talks with More Cupcakes. Lovemore’s interactive website coupled with sales to Illinois also created specific jurisdiction. The fact that Lovemore’s most recent Illinois sale was to More Cupcakes’ counsel did not impact the analysis. Lovemore still knowingly sold product within Illinois. 

The fiduciary shield doctrine did not apply to the individual defendants, who were both owners and operators of Lovemore. The fiduciary shield doctrine denies personal jurisdiction over individuals who contact Illinois solely for the benefit of their employees and not themselves. But the doctrine does not apply to owners of a company that have discretion over whether or not they do business in Illinois. As Lovemore owners, therefore, the Lovemore individuals are not protected by the fiduciary shield doctrine.

For similar reasons, while corporate officers are generally not personally liable for corporate trademark infringement claims, More Cupcakes’ claims against the Lovemore individuals survived. Both individuals were owners of Lovemore and the Complaint alleged that they personally directed the allegedly infringing acts.

Finally, the Court transferred the case to the Eastern District of New York.  While More Cupcakes’ chosen forum deserves deference, the material events regarding the alleged infringement all occurred in New York where the t-shirts were designed, made, offered for sale and sold. And the Court held that the convenience factors, such as locations of documents and witnesses, were all neutral.

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Rosenthal Collins Group, LLC v. Trading Techs. Int'l., Inc., No. 05 C 4088, Slip Op. (N.D. Ill. Sept. 18, 2009) (Dow, J.). 

Judge Dow denied the parties' cross-motions for summary judgment in this patent dispute regarding software for electronic futures trading using a static price axis.* Although the other related cases are stayed pending an appeal of the related eSpeed case to the Federal Circuit, declaratory judgment defendant Trading Technologies ("TT") sought and Judge Moran agreed to allow this case to proceed based upon TT's agreement that declaratory judgment plaintiff Rosenthal Collins Group ("RCG") infringed even under the Court's allegedly narrow construction of a "common static price axis" and "static display of prices." TT sought to broaden the constructions on appeal. The parties agreed on how the accused Onyx software operated. The price axis was generally dynamic. But if a user pointed a cursor in the window containing the axis, the axis became static until the cursor was removed or after thirty seconds, whichever came first. TT identified this as Onyx's order entry mode. And because Onyx has a static axis in order entry mode, TT argued that Onyx infringed based upon the order entry mode, even if it did not infringe in other modes. RCG argued that Onyx only had a single mode, and because the price axis was not consistently static, without manual recentering, there was no infringement. The Court held that whether Onyx operated in three modes and, therefore, infringed, or operated in a single mode and, therefore, did not was a question of fact. The case, therefore, was not appropriate for summary judgment.

The Court also stayed the case pending appeal of the eSpeed case, except for TT's motion for default and sanctions. 

*  Click here for much more on this case and its related cases in the Blog's archives.

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Following up on posts analyzing the Northern District's Local Patent Rules over the last several weeks (click here (for analysis of the Rules, here (for a comparison of the enacted Rules to the Proposed Rules) and here (arguing that the Rules will increase patent litigations in the Northern District of Illinois) for those posts and here for a copy of the Rules), I have prepared the following chart laying out the schedule contemplated by the Rules in an easy to reference format.  As I promised earlier, I will begin a series of posts soon looking at each Rule or group of Rules in more detail.

Key Time Intervals:

To Final Infringement Contentions: 7-8 months

To Claim Construction Hearing: 13-14 months

To Summary Judgment Motions: 19-20 months

To Trial: 25-26 months

* The Answer deadlines are approximate and can be impacted by waiver of service, extensions granted by the Court and when the Complaint is served, among other factors.

** LPR 3.3 references LPR 3.2 Final Invalidity Contentions. LPR 4.1(a) sets the claim construction dates based upon "Final Invalidity Contentions pursuant to LPR 3.2." These are likely artifacts from the Proposed Local Rules. In the Proposed Local Rules, LPR 3.2 addressed Final Invalidity Contentions which were served after Final Infringement Contentions. In the Rules as issued, however, LPR 3.2 controls Final Non-Infringement, Enforceability and Validity Contentions, and LPR 3.1 addresses Final Invalidity Contentions, among others. I understand a correction is likely to be issued clearing this up in the next week or so. As a result, this chart treats the references to the Final Validity Contentions in LPR 3.3 and LPR 4.1(a) to refer to the LPR 3.1 Final Invalidity Contentions.

*** LPR 3.6 schedules the due date for opinion of counsel disclosures and production at the close of fact discovery, but does not say whether it is at the initial pre-claim construction close or the post-claim construction close. I suspect it will ultimately end up after the claim construction process, so that it need not be dealt with if the case is resolved by the claims constructions. But for the sake of safety, it is included at the earliest possible date in this chart.

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DePaul Law is hosting an impressive CLE program (11 hours of credit) this Thursday and Friday, October 15-16 at its downtown Chicago campus titled Cyberlaw 2.1: Legal Challenges of an Evolving Internet. The panels are largely academic and very impressive. Here is how DePaul describes the program:

[The conference] contemplates the changing role of the internet in society. These developments bring, as technological advances often do, both opportunities and risks.   Correspondingly, cyberlaw doctrine now confronts challenges resulting from the increasing importance of social networking applications and cloud computing, the drive toward "personalization" of search, advertising, and other internet experiences, and, as life is lived more and more online, the related threats to private life caused by the potential to store more and more complete records of individuals' experiences. Our speakers will explore the ways in which Web 2.0 and beyond affects a wide spectrum of legal issues, ranging from privacy and freedom of expression through intellectual property.

In connection with the program, DePaul is also hosting the 12^th Annual Niro Distinguished Intellectual Property Lecture and Luncheon. The speaker will be Stanford's Mark Lemley presenting his paper, "Irrelevant Confusion." Click here to register and here for more information on either program. 

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Here are several stories that I have been wanting to blog about, but have not been able to get to because of the new Local Patent Rules, my webinar on reducing IP litigation costs (I was glad to see that so many of you attended and found the presentation valuable) and pressing client matters:

• Judge Zagel was interviewed by Metropolitan Corporate Counsel.  He discussed how his docket has been impacted by the recession and  noted, among other things, that parties have been much more interested in and willing to agree to staying cases or slow discovery -- click here to read the story.  He also briefly discusses discovery of electronically stored information.
   
• Seattle Trademark Lawyer Michael Atkins has an excellent series of posts on the US Olympic Committee's enforcement of the Olympic marks, to which it has almost absolute rights based upon federal law -- click here, here, here, here and here.  I had planned to write about these issues myself early this week while Chicago enjoyed winning the 2016 Summer Olympics, but as you all likely know by now that is not quite how the vote went.

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General Kinematics Corp. v. Carrier Vibrating Equipment, No. 08 C 1264, Slip Op. (N.D. Ill. Jul. 27, 2009) (Coar, J.).

Judge Coar construed the claims of declaratory judgment defendant's patent for a vibratory conveyor system.  The following constructions were particularly interesting:

• The Court noted that declaratory judgment plaintiff did not separately define the function and structure for the means plus function elements.  While there was no direct impact from the failure to define function and structure separately, the Court noted that the definitions did not assist its constructions.
   
• The structure of one means plus function element was not just a generic controller, but a controller as described in the specification and figures, as well as equivalents of them.

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Next week, on October 8 at 10am central, I have the privilege of giving a presentation on my six steps for reducing IP litigation costs and improving your effectiveness, as part of BrightTALK's IP Litigation Summit.  The presentation draws on my experience as both inside and outside counsel.  I discuss ways to manage your outside counsel proactively and effectively.  I also look at the role of not just a long term case strategy, but a short term strategy in controlling and focusing costs on your litigation goals while increasing your effectiveness.  Click here to register for my presentation.  You can watch the presentation below, both live and anytime afterward:

And in addition to my presentation, there is a very impressive line up for the summit, headlined by former PTO Director and Foley & Lardner partner Jon Dudas:

• Jon Dudas, Foley & Lardner -- Appealing Beyond the Supreme Court:  Patent Reform (12pm central)
   
• Mike Milano, Shepard Mullin -- Does The Sun Shine On Inventive Process? In re Bilski, S.Ct.2009 (11am central)
   
• Thomas Fleming, Kaye Scholer -- Developing a Winning IP Litigation Strategy in Challenging Times (1pm central)
   
• Anthony Cebro, PCT Companies (2pm central)
   
• Mike Rodenbaugh, Rodenbaugh Law -- Abusive Domain Names: Enforcement Options & ICANN Policy Update

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While the Northern District has made clear that it is not transforming itself into a rocket docket like the Eastern District of Virginia or the Western District of Wisconsin, the newly enacted Local Patent Rules (“Rules” or “LPR”)* are going to have a significant impact on patent litigation filings in Chicago. The cases will not proceed to trial faster than the Northern District's average for all cases of slightly more than two years, but the path to trial will be significantly different. The changes are even-handed, benefiting both patentholders and accused infringers.  One might expect even-handed Rules to have little impact on filings, but in this case patentholders will likely decide that the Rules provide enough value to overcome the portions of the Rules that benefit accused infringers.  The Rules, therefore, will draw patent cases to the Northern District. Here are the particular elements of the Rules that will attract patent plaintiffs to the Northern District:

1.      Substantive Initial Disclosures & Document Production.

LPR 2.1 requires both parties to exchange substantive, non-evasive Rule 26(a) Initial Disclosures. Furthermore, LPR 2.1(b) requires that along with its Initial Disclosures, an accused infringer produce: 1) documents sufficient to show the operation and construction of each element of any product or process specifically accused in the Complaint; and 2) copies of all known prior art. This early document production, which is generally contemplated by Rule 26 but almost never done in practice, will be a major draw for patentholders. The ability to get immediate technical information in discovery, without the expense of serving document requests, is significant. It allows patentholders to have information before preparing their Initial Infringement Contentions. It also allows patentholders to evaluate the strength of their cases early using the technical information produced by the accused infringers, before incurring significant discovery expenses.

But while LPR 2.1 will attract patent plaintiffs, it also benefits accused infringers. LPR 2.1 also requires patentholders to make an initial document production, and patentholders have a more significant obligation. They must produce not just documents sufficient to show, but all documents regarding: 1) any sale, offer for sale or use of the patented invention before filing; 2) design, reduction to practice or invention of the patented technology generally; 3) all communications with the PTO (the prosecution history) for the patents in suit and any patents from which they claim priority; and 4) ownership of the patent. Additionally, as with accused infringers, patentholders must identify which documents correspond to each of the four categories. Having this early information will allow accused infringers to evaluate their defenses early in the case and prepare for early dispositive motions such as motions challenging ownership or validity based upon a bar date. And the documents will allow accused infringers to update affirmative defenses or add counterclaims before there could be any prejudice.

Finally, the accused infringers' production obligation regarding its products is only triggered if the patentholder specifically identifies the accused products in its complaint. This will strongly encourage plaintiffs to identify the accused products in the complaint. A standard which comports with the Twombly/Iqbal pleading standards – click here to read my article on the uneven application of the Twombly standard between patentholders and accused infringers.

2.      Defendant opens and closes Markman briefing.

Most Districts either have two rounds of concurrent claim construction briefing or a traditional opening-response-reply schedule with the patentholder opening and replying. Significantly, the Rules provide for a single set of briefs with the accused infringer—not the patent holder—submitting the initial and final briefs. Writing first and last benefits the accused infringer. But economically, the patentholder saves money by only writing one brief and can make any follow up arguments during a hearing or seek a sur-reply if the Court does not hold a hearing.

3.      Late Claim Construction briefing.

The final major draw for patentholders is the late claim construction proceedings. In addition to cost savings in the briefing process, the claim construction is scheduled during the later portion of a discovery period that is scheduled to end forty-five days after the Court rules on claim construction. Maintaining pre-claim construction uncertainty through most of discovery benefits patentholders. Furthermore, the Rules make clear that a judge can disregard early dispositive motions that would require claim construction before the claim construction contemplated by the Rules. So, patentholders may face fewer early summary judgment motions.

Conclusion

The Rules are evenhanded, benefiting both patentholders and accused infringers. But the specific benefits afforded patentholders will still drive patentholders to file in the Northern District of Illinois over other courts, some that may have faster times to trial, with different rules.

* Click here for my post analyzing the Rules and here for my post analyzing the differences between the Rules and the Proposed Rules.

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Congratulations to Sharon Barner, a Chicagoan and the head of Foley & Lardner's IP practice.  Barner has been nominated to become the next Deputy Director of the Patent & Trademark Office.  Based upon reputation and my limited contact with Barner, including among others speaking on a panel at Northwestern with her, the administration made an excellent choice.  For more on the nomination, check out Patently-O and Chicago Law.

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Yesterday, October 1, 2009, the Northern District of Illinois adopted Local Patent Rules ("LPR" or "Rules"), effective immediately -- click here for a copy of the Rules.  According to LPR 1.1, the Rules apply to all cases filed in or transferred to the District after October 1, 2009.  Judges are also free to apply all or part of the Rules to currently pending cases.  Late yesterday, I analyzed the schedule contemplated by the Rules -- click here to read that post. 

In this post, I am going to focus on the handful of substantive changes between the new Rules and proposed local patent rules ("Proposed Rules") first issued earlier this year for the benefit of those members of the Northern District Bar that have closely followed the enactment of these Rules.*   As a side note, the Rules show that the Court seriously considered the comments made during the public session to discuss the Proposed Rules earlier this year.  The overall schedule set out by the Rules is also almost identical to that created by the Proposed Rules, with a few additions additions and a lengthening of about two weeks.

Over the next several weeks, I will break down each LPR in more detail.  I will also post a schedule of the timing contemplated by the Rules in a table format, but for now here are highlights of the significant changes between the Proposed Rules and the Rules as enacted yesterday:

Some of the more significant changes the Court made from the Proposed Rules to the LPR as enacted:

• Early Dispositive Motions (LPR 1.1 & 6.1):  A statement was added in LPR 1.1 that the Court may defer any motion filed before the LPR Section 5 claim construction process until after the Claim Construction Proceedings.  A new comment to LPR 6.1 explains that the Court has discretion in determining whether to consider "early" summary judgment motions;
  
• Protective Order (LPR 1.4):  The Proposed Rules requirement that the parties file an agreed Protective Order in the form of LPR Appendix B -- click here for the form Protective Order -- seven days before exchanging LPR 2.1 Initial Disclosures was removed.  Instead, the Appendix B Protective Order will be deemed to be in effect from the date of the Initial Disclosures and either party can seek to modify it;
  
• Meaningful Initial Disclosures (LPR 2):  The initial comment requires that the LPR 2.1 Initial Disclosures be "meaning - as opposed to boilerplate - and non-evasive.  This is not a change from the Proposed Rules, but is worth an additional mention;
  
• Initial Disclosures (LPR 2.1):  The Initial Disclosures deadline remains fourteen days after defendant files its answer, but in the event that defendant files counterclaims the deadline is now extended to fourteen days after plaintiff answers the counterclaims.  It is also worth mentioning again although it is not an addition to the Proposed Rules, that all parties have affirmative production requirements, outlined in LPR 2.1(a) & (b), along with the preparation and exchange of Initial Disclosures;**

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Today, October 1, 2009, the Northern District of Illinois adopted Local Patent Rules ("LPR" or "Rules"), effective immediately -- click here for a copy of the Rules.  According to LPR 1.1, the Rules apply to all cases filed in or transferred to the District after October 1, 2009.  Judges are also free to apply all or part of the Rules to currently pending cases.  The new Rules are substantively very similar to the proposed local patent rules ("Proposed Rules"),* with a series of modifications that shows that the Court seriously considered the comments made during the public session to discuss the Proposed Rules earlier this year.  The overall schedule is also almost identical, with additions and a lengthening of about two weeks.

Over the next several weeks, I will break down each LPR in more detail.  I will also post a schedule of the timing contemplated by the Rules in a table format, but for now here are highlights of the new Rules:

• Protective Order:  A standard protective order is deemed entered as of the exchange of Initial Disclosures with any party free to seek modifications, to avoid discovery delays being blamed upon entry of a protective order (LPR 1.4);
   
• Initial Disclosures & Production:  Automatic document production requirements of both parties claiming patent infringement and accused infringers when Initial Disclosures are served and of accused infringers when Initial Non-infringement and Invalidity Contentions are served;**
   
• Initial Contentions:  Fourteen days after Initial Disclosures, parties claiming patent infringement serve Initial Infringement Contentions.  Fourteen days after Initial Infringement Contentions are served, accused infringers serve Initial Non-infringement, Unenforceability and Invalidity Contentions.  Fourteen days later, parties claiming patent infringement parties claiming patent infringement serve an Initial Response to Invalidity Contentions;
   
• Final Contentions:  Twenty-one weeks after Initial Infringement Contentions, parties claiming infringement serve Final Infringement Contentions, and accused infringers serve Final Unenforceability and Invalidity Contentions at the same time.  Twenty-eight days later, accused infringers serve Final Non-infringement Contentions and parties claiming patent infringement serve Final Enforceability and Validity Contentions (after the final contentions, leave of Court is required for any amendments);

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