We recently posted about when a complainant is permitted to amend its complaint and the good cause that must be shown.  Similar issues arise where a respondent wants to amend an answer without showing good cause.  An order issued last week by Administrative Law Judge Lord provides insight as to respondent’s burden in seeking leave to amend its answer to the complaint.  Certain Industrial Automation Systems and Components Thereof Including Control Systems, Controllers, Visualization Hardware, Motion Control Systems, Networking Equipment, Safety Devices, and Power Supplies, Inv. No. 337-TA-1074, Order 10 (December 15, 2017).

Rockwell Automation, Inc. filed a complaint against Radwell International, Inc.  Radwell answered listing sixteen defenses and reserved its right “to amend its response to include other defenses.”  A few weeks later, Radwell moved to amend its answer to add more detail to ten of its affirmative defenses.  While Rockwell opposed the motion, Staff supported arguing that “supplementation of Radwell’s defenses” will facilitate the narrowing of issues and allow the parties to more efficiently develop a complete record necessary to adjudicate the issues in this Investigation.”  Although the investigation is still in its early stages, ALJ Lord largely denied the motion only allowing supplementation of three affirmative defenses that had already included substantial factual support.

With respect to the standard for amending an answer to the complaint, ALJ Lord held that despite Radwell’s representations to the contrary, “motions for leave to amend pleadings are not granted routinely.”  She added that “[a]mendment of pleadings without good cause is prejudicial to the parties and disruptive to the orderly and timely progress of proceedings under section 337.”

ALJ Lord held that most of Radwell’s defenses as originally pleaded “are pro forma and lack specific factual support” and therefore did not comply with Commission Rule 210.13(b), which requires affirmative defenses to include “as much specificity as possible.”  She further dismissed as irrelevant Radwell’s attempt to reserve any right to amend, holding that the “reservation” does nothing.  ALJ Lord distinguished the need for proper and specific answers in ITC cases from the potentially less demanding requirements in district court cases noting that the ITC is supposed to conclude investigations “at the earliest practicable time,” 19 U.S.C. § 1337(b), making late-filed amendments more problematic.  As for Staff’s arguments concerning a complete record, ALJ Lord stated that the need for a complete record extends only to issues that are properly presented for adjudication under the Commission Rules.


Unlike in district court, affirmative defenses in the ITC “shall be pleaded with as much specificity as possible.”  Accordingly, when responding to the complaint, a respondent should endeavor to provide as much factual and legal support for its affirmative defenses as practicable.  If a respondent cannot show good cause for supplementing its affirmative defenses, as shown in ALJ Lord’s order, amendment later in the investigation may not be permitted.

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Blaney Harper, who co-chairs the Firms intellectual property ITC practice, focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.