Preliminary motions, a staple of modern litigation, can sometimes expose larger problems in a party’s case. In a recent decision, Chief Judge Gregory M. Sleet explained how a motion in limine over an expert report raised a different question: Did the plaintiff sufficiently identify its Section 271(f) infringement argument in time for trial?
Addressing this broader issue, the Court answered no, thereby eliminating a potential avenue for recovery:
“[T]he only bases [plaintiff] Edwards has asserted for its contention that CoreValve was on notice of such claims are a single sentence in a CoreValve expert report that contains what is, at most, an oblique reference to § 271(f); a formalistic recitation in the original complaint of all possible modes of infringement under § 271 that Edwards might later assert; and an assertion made long after the close of discovery that Edwards ‘reserved its rights’ to assert § 271(f).”
By doing so, the Court reinforced once again the practice in this district that general statements in pleadings more often than not cause disclosure problems further down the road.