Judge Robinson: Motion to exclude evidence DENIED where prejudice could be cured with limited additional discovery
In Intermec Technologies Corp. v. Palm Inc., C.A. No. 07-272-SLR (D. Del. June 7, 2010), Judge Robinson denied defendant/counter plaintiff Palm’s motion to exclude evidence related to plaintiff/counter defendant Intermec’s “Trakker” product, which was disclosed as prior art invalidating Palm’s patent. Id. at 1. Although the disclosure was untimely, per the terms of the scheduling order, “the failure to make earlier Trakker disclosures was related to [Intermec’s expert’s] belief that the search for prior art which would invalidate the ’803 patent needed to be responsive to Palm’s infringement contentions.” Id. at 4. Judge Robinson permitted Palm to take additional discovery related to the Trakker disclosure, which can “cure” any lack of clarity in Intermec’s expert’s expert opinion. Id. at 4-5.