Judge Robinson recently construed the terms of patents-in-suit — U.S. Patent Nos. 7,919,159; 7,943,216, and 7,879,930 — related to “plastic materials with applications in packaging for oxygen-sensitive foods and beverages.” INVISTA North America S.a.r.l. et al. v. M&G USA Corporation, et al., C.A. No. 11-1007-SLR-CJB (D. Del. June 25, 2013).
Judge Robinson construed the following terms:
“copolyester containing a metal sulfonate salt”
“copolyester comprising a metal sulfonate salt”
“metal sulfonate salt”
“melt blended resin” and “melt blend”
“a base polymer”
“transition metal catalyst”
“copolyester of polyethylene terephthalate”
Judge Robinson also considered M&G’s motion to strike INVISTA’s expert testimony submitted in support of its opening claim construction brief, and “hours before the close of expert discovery.” Id. at 7 n.7. INVISTA argued that its expert’s testimony did not violate the scheduling order’s provisions on disclosure of expert testimony because the submission merely provided “a background tutorial for purposes of claim construction.” Id. Judge Robinson disagreed.
Claim construction is an issue highly relevant to infringement in this case. Even if lnvista’s filing of new expert testimony at the close of expert discovery and without prior notice to M&G did not technically violate the scheduling order, it was inconsistent with the intent of the scheduling order.
Id. at 8
Judge Robinson agreed that “expert testimony can aid the court in claim construction,” but struck INVISTA’s expert testimony in this case, becuase “allowing new expert testimoony that ha[d] not been vetted through discovery would unduly prejudice M&G.” Id.