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  • District Of Delaware Denies Motion To Dismiss Infectious Unenforceability Counterclaims

    On January 7, 2020, Magistrate Judge Christopher Burke of the District of Delaware issued a Report and Recommendation recommending denial of plaintiff’s motion to dismiss counterclaims of unenforceability based on the doctrine of infectious unenforceability.  Guardant Health, Inc. v. Foundation Medicine, Inc., Case No. 1:17-cv-1616-LPS-CJB, D.I. 343 (D. Del. Jan. 7, 2020).  The Court found defendants’ allegations supported the existence of an “immediate and necessary” relation between plaintiff’s alleged concealment of the true inventorship of certain earlier-issued patents and enforcement of the patent at issue in the counterclaims.