In Roquette Freres v. SPI Pharma, Inc., C.A. No. 06-540-GMS (D. Del. Sept. 17, 2010), defendant filed a motion in limine to prevent plaintiff from presenting evidence of certain data of tests run on samples of the accused products. Id. at 1. Plaintiff argued that the test data was circumstantial evidence of literal infringement. Id. Defendant asserted that plaintiff’s circumstantial evidence was “nothing more than a Doctrine of Equivalents argument by stealth[.]” Id. (internal quotation omitted). Judge Sleet denied the motion in limine, however, because even circumstantial evidence may be probative of literal infringement, and “the Federal Circuit has found the jury capable of reasonably evaluating circumstantial evidence in cases such as this.” Id. at 2.
Roquette Freres v. SPI Pharma, Inc., C.A. No. 06-540-GMS (D. Del. Sept. 17, 2010)
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