Is Leave to Amend Complaint between Liability and Damages Phases of Bifurcated Trial Governed by Liberal Standard of Rule 15(a) or Tighter Standard of Rule 15(b)?

From SRI Int’l Inc. v. Internet Security Sys., Inc., 2011 U.S. Dist. LEXIS 114178 (D. Del. Oct. 4, 2011):

Symantec's motion presents what appears to be an issue of first impression: whether leave to amend between the liability and damages phases of a bifurcated patent trial is subject to the liberal standard set forth in Federal Rule of Civil Procedure 15(a) or, as SRI suggests, the more conservative standard set forth in Federal Rule of Civil Procedure 15(b). Rule 15(b) permits amendments to pleadings ("[during and] after trial") based on objections at trial and for issues tried by consent. Insofar as neither circumstance is presented here, Symantec's motion would be denied under this standard. The court need not conclusively determine this issue, however, because it denies Symantec's motion under the rubric of Rule 15(a)***.

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