Did PDS/TPL just get smacked hard for incompetence?
No, they did not, at least not for now. And this subject has been discussed a number times over the years because it has happened in some of our prior cases.
The bottom line is that this is nothing more that a bit of gamesmanship. The plaintiff in patent litigation always wants these things to be considered broadly because that requires less work and makes it easier to prove infringment involving a greater number of products. Obviously, the defendants want the opposite for the opposite reason.
Plaintiff attorneys are fully aware of the rules allowing amendment, so they take the broad approach first to see what will "stick", and if that doesn't work, they then amend (supplement) to the extent possible. If we see no meaningful amendment from this point forward, that would mean that there was really no viable and/or effective way to have included such contentions in the first place --- nothing really lost. On the other hand, if our attorneys do amend and such is allowed by the Court, then we would have gained some additional grounds for infringment of at least some additional items. Of course, it is always possible that the Court could see things differently and take drastic action, in which event we would have gotten "smacked hard" --- but that doesn't happen very often and should be considered unlikely at this juncture.
As always, we shall see.
