The District of Colorado in All Plastic Inc. v. SamDan LLC et al., No. 1:20-cv-01318, has denied a motion to amend a complaint to accuse additional products (namely, certain cannabis containers that were commercially released after the filing of the lawsuit) of patent infringement because, under the circumstances, the plaintiff earlier should have determined whether to accuse them of infringement without having to wait for discovery from the defendants. The plaintiff had argued that it did not learn about the additional products until afterwards, but the Court noted that other information in the record contradicted this proposition. More importantly, the Court stated (emphasis in original):

[T]he relevant inquiry for the purposes of diligence in this case is not when Plaintiff actually learned of Defendants' Additional Products. Rather, given their public nature, the relevant inquiry in these circumstances is when Plaintiff could have learned of these Additional Products.

Here, the plaintiff had intimate knowledge of the defendants' product market activity, and had been monitoring the defendants' business and internet postings since at least early 2019, where  at least some of these Additional Products were being publicly advertised on social media as early as May 2020 (contemporaneous with when the plaintiff's initial complaint was filed), and the nature of the claims of asserted patent, U.S. Patent No. 10,384,834, “are directed at visible characteristics of an accused product.” The Court found no basis to suggest that the plaintiff could not ascertain from publicly available information whether to allege infringement against the additional products. “Nor is there any suggestion that [plaintiff] was precluded from purchasing Additional Products to examine them, or to determine whether such Additional Products were offered for sale or sold in the United States.” Thus, the plaintiff was not required to rely upon the defendants' production in response to discovery in this lawsuit in order to ascertain the existence of these additional products or their respective characteristics.

[D]iscovery is not intended to afford a party an opportunity to seek information—particularly information that is publicly ascertainable—for an unasserted  claim, or a yet-to-be filed case. . . . Nothing in the record persuades this court that Plaintiff had to wait for Defendants' production before alleging infringement.

The Court held that there was not good cause to amend the complaint after the deadline for amending the pleadings pursuant to Rule 16(b)(4) and that the Court also would deny such amendment in its discretion under Rule 15(a) as untimely, inefficient, and prejudicial to proceeding expeditiously in this action.

Defendant SamDan LLC, which does business as Smokus Focus,  is represented by Kammie Cuneo of Thomas P. Howard LLC.