July 5, 2013

Chief Judge Sleet Grants Motion to Transfer to Southern District of California

Chief Judge Sleet recently granted a motion to transfer in a patent infringement case involving software for managing collision insurance claims. See Audatex N. Am., Inc. v. Mitchell Int’l, Inc., C.A. No. 12-139-GMS, Memorandum Op. at 1 (D. Del. June 28, 2013). Both the plaintiff and defendant are Delaware corporations with principal places of business in San Diego, California. Accordingly, it was clear that the case could have originally been brought in the Southern District of California. Id. at 2-3. Finding that the Third Circuit’s Jumara factors favored transfer on balance, Judge Sleet granted the defendant’s motion to transfer.

Judge Sleet explained that the plaintiff’s choice “to litigate in the forum where it is incorporated, rather than the forum where its principal place of business is located . . . is entitled to less deference than it would typically receive. Consequently, [the plaintiff’s choice of forum] factor weighs against transfer and is accorded heightened, but not maximum, deference as an individual Jumara factor.” Id. at 5-6. Furthermore, although the question of “whether the claim arose elsewhere” is often neutral in patent infringement actions, “because the patent infringement claims arise from infringing products that were designed and manufactured in a single, discrete location, this factor weighs slightly in favor of transfer.” Id. at 6-7. Several other factors, including the convenience of the parties and practical considerations that could make the trial expeditious or inexpensive, also favored transfer, and only the plaintiff’s choice of forum weighed against transfer. Judge Sleet, therefore, concluded that the defendants “met their burden of demonstrating that the interests of justice and convenience strongly favor transfer.” Id. at 17.

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July 3, 2013

Judge Stark denies defendant’s motion to dismiss and alternative motion to transfer venue

In a recent memorandum opinion, Judge Leonard P. Stark denied defendant’s motion to dismiss plaintiff’s complaint for lack of personal jurisdictional and improper venue, and denied defendant’s alternative motion to transfer venue to the Northern District of California. Graphic Properties Holdings Inc. v. Asus Computer International, Inc., C.A. No. 12-210-LPS (D. Del. Jun. 28, 2013). Plaintiff, a Delaware corporation with its principal place of business in New York, is asserting three patents, U.S. Patent Nos. 5,896,119 ("the '119 patent"), 6,816,145 ("the '145 patent"), and 8,144,158 ("the '158 patent"). Id. at 1-2. Moreover, plaintiff is asserting one or more of those three patents in at least eleven other ongoing actions in the District of Delaware. Id. at 1. Defendant is a California corporation with its headquarters in the Northern District of California. Id. at 2. Defendant “does not have employees, documents or places of business in Delaware,” and “none of [its] accused products were designed or manufactured in Delaware.” Id.

Defendant contested personal jurisdiction and venue only with respect to plaintiff’s asserted claims related to the ’119 patent; with respect to claims under the ’145 and ’158 patents, defendant had submitted to the Court’s jurisdiction. Id. at 5. Denying defendant’s motion to dismiss for lack of personal jurisdiction, Judge Stark explained why “jurisdiction is proper at least” under 10 Del C. § 3104(c)(3) based on “use” of the accused product in Delaware. Id. at 6. Specifically, § 3104(c)(3) permits the exercise of personal jurisdiction when a defendant “causes tortious injury in [Delaware] by an act or omission in [Delaware].” Id. As Judge Stark noted, defendant admitted that “in two instances an individual in Delaware returned a broken VH-242 monitor to [defendant], and [defendant] provided that individual with a replacement monitor in satisfaction of a warranty agreement.” Id. Judge Stark thus found that “[a]t a minimum,” plaintiff’s “indirect infringement claim . . . ‘arises from’ use of the accused products in Delaware by individuals who received the product from [defendant].” Id. at 7. Moreover, as Judge Stark explained, “[t]he direct infringement claim is likewise directly related to the delivery of the accused products to Delaware.” Id. Finally, Judge Stark found that the assertion of personal jurisdiction would comport with Due Process. In support of that finding, he noted that defendant “knowingly and intentionally shipped the accused products to two separate customers in Delaware” to satisfy its warranty. Id. Judge Stark also found the exercise of personal jurisdiction “fair and reasonable” based predominantly on defendant’s litigation with respect to the ’145 and ’158 patents that is moving forward in Delaware and the fact that the ’119 patent is being asserted in several other concurrent Delaware lawsuits. Id. at 8. Moreover, because the parties agreed that the “outcome of the venue issue should be the same as the outcome of the personal jurisdiction question,” Judge Stark denied defendant’s motion to dismiss for improper venue. Id. at 9.

Denying defendant’s alternative motion to transfer venue to the Northern District of California, Judge Stark found that “plaintiff’s choice of forum, practical considerations, administrative difficulty, and public policy” weighed against transfer. Id. at 16. Regarding plaintiff’s choice of forum, Judge Stark noted that “[t]he Court agrees with those cases that include a corporate entity’s state of incorporation as part of its home turf.” Id. at 10. Judge Stark thus found that plaintiff’s choice of forum was “entitled to ‘paramount consideration,’ or, at a minimum, ‘significant deference.’” Id. With respect to practical considerations, Judge Stark explained that plaintiff has “at least 11 other cases pending in Delaware, each of which involves one or more of the asserted patents,” and this factor therefore weighed “heavily” against transfer. Id. at 14. Relatedly, addressing administrative difficulties, Judge Stark noted that “[t]ransferring this case to California would only add to the workload of that Court without meaningfully reducing the workload of this one.” Id. at 15.

On the other hand, Judge Stark found that “defendant’s preferred forum, location of operative events, convenience to witnesses, and location of relevant evidence” weighed in favor of transfer, and that the remainder of the factors were neutral. Id. at 16. “Evaluating the factors as a whole, and according each factor its appropriate weight under the circumstances presented,” Judge Stark determined that defendant failed to demonstrate that “the balance of the convenience factors and interests of justice weigh strongly in favor of transfer.” Id.

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July 3, 2013

Judge Stark grants motion for summary judgment of laches and dismisses in part Defendants' inequitable conduct affirmative defenses and counterclaims

Judge Stark recently granted defendants' motion for summary judgment of laches in the long-standing suit filed by St. Clair for infringement of patents related to power savings and management. St. Clair Intellectual Property Managment Consultants, Inc. v. Acer, Inc., et al., C.A. No. 09-354-LPS (consol.) (D. Del. July 2, 2013). "A laches defense requires a showing by a preponderance of evidence that (a) the patentee's delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay." Id. at 4 (quotations omitted). And, a presumption of laches arises if the patentee had actual or constructive knowledge of alleged infringing activity for six or more years before filing suit. Id. Defendants' argued, and Judge Stark agreed, that there was such a presumption here because St. Clair had constructive knowledge of "activities infringing the Fung patents" no later than October 2002, but did not file suit until May 15, 2009. Id. Specifically, Judge Stark found that:

The evidence presented by Defendants establishes that St. Clair, [its co-owner, and the patents' inventor], were aware of the existence of products embodying "technology similar to that for which [the patentee] holds a patent and [which] uses that similar technology to accomplish a similar objective." By its failure to act, despite this knowledge, St. Clair "shirk[ ed]" its "duty to examine the product or device more closely to ascertain whether it infringes ... on peril of triggering the laches period and perhaps ultimately losing [its] right to recover damages for the infringement."

Id. at 6. (quoting Crown Packaging Tech. , Inc. v. Rexam Beverage Can Co., 679 F. Supp. 2d 512, 520 n.42 (D. Del. 2010).

To rebut the presumtion of laches, St. Clair argued that the trigger date for laches was the date of the first accused infringement, which was August 2004, and that the pre-2004 accused products were immaterial "because a new laches period began as a result of design changes implemented in the newer accused infringing products." Id. at 7. Judge Stark rejected this argument because "St. Clair cannot avoid a laches defense by narrowing its infringement contentions, especially given that in 2002 St. Clair conducted an analysis of pre-2004 products." Id. at 8.

Judge Stark also granted-in-part St. Clair's motion for summary judgment dismissing certain bases for Defendants' inequitable conduct defenses. Id. at 8. Defendants' defenses were based on the named inventor misrepresenting that he was the sole inventor, the withholding of material prior art during prosecution, and the applicant's misrepresenting its entitlement to small entity status. Id. Judge Stark granted St. Clair's motion as to one prior art reference that was allegedly withheld during prosecution. Id. at 11. Specifically, Judge Stark found that Defendants' failed to establish that the applicant or its attorneys knew of the specific reference or intentionally withheld it from the PTO. Id. Judge Stark also found that Defendants failed to raise a triable issue of fact as to the applicant's intent to deceive the PTO regarding small entity status. Id. at 12-13.

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July 3, 2013

Magistrate Judge Thynge issues report and recommendation on cross-motions for summary judgment relating to covenant not to sue and motion to strike portions of reply brief.

Magistrate Judge Mary Pat Thynge recently issued a report and recommendation addressing cross-motions for summary judgment, as well as the plaintiff’s motion to strike portions of the defendant’s reply brief in support of its summary judgment motion. Cornell Univ., et al. v. Illumina, Inc., C.A. No. 10-433-LPS-MPT (D. Del. June 25, 2013). Judge Thynge agreed with the plaintiff that the defendant’s “reply brief relie[d] on inadmissible evidence from the parties’ settlement negotiations[,]” and granted the motion to strike such evidence from the reply brief. Id. at 5. Although the defendant argued that the plaintiff’s own motion and opening brief opened the door to such evidence, Judge Thynge explained, “[e]ven if plaintiffs ‘opened the door,’ that door should remain closed where plaintiffs’ references to the settlement agreement were inappropriate, and neither parties’ evidence would be admissible.” Id. at 6. Judge Thynge agreed in part with the plaintiff’s additional argument that portions of the defendant’s reply brief should be stricken because they raised new arguments and facts not appearing in the defendant’s opening brief. Id. at 9-15.

Judge Thynge then considered the parties’ cross-motions for summary judgment. Construing a settlement agreement under California law, as well as issues of successor liability under Delaware corporate law, the Court agreed with the defendant that two of the plaintiffs, Life Technologies and Applied Biosystems, were bound by a covenant not to sue entered into by the defendant and Applera Corporation, because they were “affiliates” or “successors” of Applera under the agreement. Id. at 26. But the Court agreed with plaintiff Cornell University’s argument that it was not bound by the covenant not to sue because it was not an affiliate or successor of the settling party, which the defendant did not contest in briefing. Id. at 26.

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July 3, 2013

Judge Andrews denies motion to redact portions of oral argument transcript

Judge Richard G. Andrews recently rejected a defendant’s motion to redact certain portions of an oral argument transcript relating to alleged inequitable conduct. St. Jude Medical Cardiology Division Inc., et al. v. Volcano Corp., C.A. No. 12-441-RGA (D. Del. June 17, 2013). Judge Andrews noted that the defendant had not provided any argument as to why the information should be redacted, other than a bare claim that it was highly confidential, and in denying the motion explained: “[n]o harm is alleged, and, indeed, it is apparent to me that there could not be any harm from the disclosure of specific allegations of inequitable conduct years and years ago that would justify sealing the transcript.”

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July 3, 2013

Judge Robinson rules on summary judgment motions

In a recent memorandum opinion, Judge Sue L. Robinson considered plaintiffs’ motion for partial summary judgment on infringement and defendants’ cross-motion for non-infringement, in addition to defendants’ motion for summary judgment of invaldity and plaintiffs’ cross-motion for partial summary judgment of validity. 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). Plaintiffs are asserting three patents—U.S. Patent Nos. 7,919,159 (“the ’159 patent”); 7,943,216 (“the ’216 patent”); and 7,879,930 (“the ’930 patent”)—each related to “plastic materials with applications in packaging for oxygen-sensitive foods.” Id. at 1. The ’216 and ’159 patents share a common specification and relate specifically to compositions (and containers and articles derived therefrom), which are alleged to possess strong gas barrier properties while yielding comparatively small amounts of yellowness and haze that traditionally accompanied compositions with similar properties. See id. at 2-4. The ’930 patent relates to “the use of certain colorants that do not completely deactivate” the transition metal catalyst in compositions such as those claimed in the ’216 and ’159 patents. See id. at 5.

With respect to the ’216 and ’159 patents, Judge Robinson granted summary judgment of no direct infringement. Id. at 19. The Court had construed the term “composition” as used in those patents to mean “a blend that contains the specified ingredients at any time from the moment the ingredients are mixed together.” Id. at 17. It was undisputed that defendants’ accused products—the PoliProtect products (“PoliProtect”)—are “manufactured as pellets” and have components that are separated into different layers. Id. at 17. Because the components were not “mixed together in a blend,” Judge Robinson found that PoliProtect did not practice the “composition” limitation. Id. at 18-19.

However, turning to indirect infringement of the ’216 patent, Judge Robinson found that the “only reasonable inference from the evidence of record is that [defendants’] customers mix the components of the pellets into blends to make their desired articles,” and “thereby necessarily practice the ‘composition’ limitation.” Id. at 20-21. Judge Robinson also found that, with the exception of one claim, PoliProtect practiced the remaining limitations of the seven asserted claims from the ’216 patent. See id. at 21-26. Further, as Judge Robinson noted, defendants “had knowledge of the ’216 patent at least from the filing of [the] lawsuit.” Id. at 26. Addressing contributory infringement, Judge Robinson found that defendants offered “no evidence to rebut [plaintiffs’] arguments that the PoliProtect products are not a staple of commerce that are suitable for noninfringing uses.” Id. at 27. With respect to induced infringement, Judge Robinson first noted that plaintiffs “established on the summary judgment record that the PoliProtect products have no substantial noninfringing uses.” Id. at 28. Moreover, Judge Robinson explained that “it is entirely appropriate to presume that one who sells a product containing a component that has no substantial noninfringing use in that product does so with intent that the component will be used to infringe.” Id. at 29 (quoting Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1340, 1338 (Fed. Cir. 2008)). Judge Robinson therefore granted summary judgment of contributory and induced infringement for six of the seven asserted claims of the ’216 patent.

Judge Robinson, however, denied plaintiffs’ motion for summary judgment with respect to indirect infringement of the ’159 patent. Id. at 31. Plaintiffs argued PoliProtect literally infringed the ’159 patent because PoliProtect’s LiSIPA-containing copolyester meets both the “polyester” and “ionic compatibilizer” limitations. Id. at 29. Judge Robinson did note that “the doctrine of equivalents may be applicable even when its application would vitiate the requirement that two components be separate elements.” Id. at 30. Judge Robinson concluded, however, that defendants raised genuine issues of material fact regarding the “polyester” limitation under the doctrine of equivalents, precluding the entry of summary judgment. Id. at 30-31.

With respect to the ’930 patent, the parties summary judgment motions addressed only indirect infringement. See id. at 31. Judge Robinson found that plaintiffs offered evidence of infringement of the limitations at issue and thus created genuine issues of material fact, precluding the entry of summary judgment of no indirect infringement. See id. at 31-35.

Turning to the validity motions, Judge Robinson noted that defendants argued that the asserted claims of the ’159 and ’216 patents are invalid as obvious and for failure to comply with 35 U.S.C. § 112’s written description and enablement requirements. Id. at 34. With respect to obviousness, defendants asserted that the ’159 and ’216 patents are obvious in light of two prior art references. Id. at 35. As Judge Robinson explained, however, defendants’ expert “never addressed the combination of the . . . references in his expert reports,” and the argument was made for the first time in defendants’ reply summary judgment brief for invalidity. Id. at 35-36. Although defendants attempted to support the new theory with an expert declaration attached to the reply brief, the new opinions in the declaration were struck in a separate order as untimely and prejudicial. Id. at 36. Without expert testimony addressing the combination of the two references, Judge Robinson granted plaintiffs’ motion for partial summary judgment of validity on this ground. Id. at 36.

With respect to a lack of enablement, defendants first argued that the ’159 and ’216 patents recite a “metal sulfonate salt,” but did not provide any “meaningful disclosures, teachings, or supportive data” related to those salts, with the exceptions of sodium and zinc. Id. at 37. Judge Robinson found, however, that plaintiffs’ expert presented evidence that the patent specification “enables one of ordinary skill in the art to make and use the claimed invention.” Id. at 39. Thus, there remained an issue of material fact, and Judge Robinson denied entering summary judgment of lack of enablement on this ground. Id. at 39. Defendants had also set forth several other similar invalidity arguments under § 112 related to the ’159 and ’216 patents, which were all premised on a similar theory that the scope of the asserted claims were “substantially broader than the small number of examples provided.” Id. at 42-43. Once again, Judge Robinson found that entry of summary judgment for invaldity on these grounds was precluded “[i]n light of the conflicting expert testimony” regarding whether the examples provided in the specification enable a person of ordinary skill in the art to make the claimed invention. Id. at 43.

Defendant also argued that plaintiffs’ specification failed to disclose the “importance of sodium acetate . . . in controlling yellowness in the compositions of the ’159 and ’216 patents,” and that the patents were therefore nonenabling and lacked a sufficient written description. Id. at 39. Judge Robinson explained, however, that “[t]he enablement and written description requirements are both based on the invention as claimed,” and “sodium acetate is not a limitation in any of the asserted claims and is not mentioned in the specification.” Id. at 40-41. Judge Robinson therefore granted plaintiffs’ partial motion for summary judgment of validity on this ground. Id. at 42.

With respect to the ’930 patent, defendants moved for summary judgment of invalidity based on an insufficient written description, non-enablement, and indefiniteness. Id. at 43. Judge Robinson denied the parties’ motions for summary judgment on these issues in light of conflicting expert testimony. See id. at 43-45.

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July 1, 2013

Judge Robinson denies motion to dismiss for lack of personal jurisidiction, without prejudice to renew following jurisdictional discovery

Judge Robinson recently considered defendant Daxtra Technologies Limited's ("Daxtra UK")' motion to dismiss plaintiff's complaint for lack of personal jurisdiction. Kenexa Brassring, Inc. v. Akken, Inc., et al., C.A. No. 12-660-SLR (D. Del. June 25, 2013). Daxtra UK is a Scottish company with places of business in the United Kingdom. Id. at 2. Defendant Daxtra Technologies Inc. ("Daxtra US") is a Delaware corporation and a subsidiary of Daxtra UK formed "for the purpose of marketing and selling software and providing support in the United States." Id.

To establish personal jurisdiction, the Court must determine whether there exists a basis for jurisdiction under Delaware's long arm statute, 10 Del C. sec. 3104(c)(1)-(4), and if so, whether the the defendant "purposefully availed" itself of the forum state such that it should reasonably anticipate being sued there. Id. at 4.

First, Kenexa argued that personal jurisdiction was appropriate "through direct contacts between Daxtra UK and the United States, including Delaware. Id. at 5. Kenexa pointed to the sale of a potentially infringing product in the United States that had been licensed to a U.S. company. Id. Judge Robinson found that this ground was not sufficient because it was unclear whether Kenexa would accuse that product of infringing the patents-in-suit. Id. Next, Kenexa asserted that personal jurisdiction was appropriate because Daxtra UK used its website to solicit job applicants in the U.S. Id. at 5-6. Judge Robinson rejected this ground because "Kenexa ha[d] not indicated any particular instance in which a U.S. applicant interacted with the website[.] Id. at 6.

Second, Kenexa argued that personal jurisdiction existed over Daxtra UK through contacts of its subsidiary, Daxtra US, pursuant to agency theory. Id. "Under agency theory, the court may attribute the actions of a subsidiary company to its parent where the subsidiary acts on the parent's behalf or at the parent's direction." Id. at 6-7 (quotations omitted). Four factors are relevant to the court's determination:

(1) the extent of overlap of officers and directors; (2) methods of financing; (3) the division of responsibility for day-to-day management; and (4) the process by which each corporation obtains its business.

Id. at 7 (quotations omitted).

Daxtra UK conceded that the officers and directors of Daxtra UK and Daxtra US overlapped completely. Id. Daxtra UK argued, however, that there was no overlap regarding the financing of the entities, and Judge Robinson found that Kenexa had not alleged otherwise, with reasonable particularity. Id. at 7-8. Regarding the third factor, Kenexa argued that Daxtra UK's CTO was assigned to Daxtra US, which was "indicative of his playing a larger role in the day-to-day management" of Daxtra US. Id. at 8. Daxtra UK responded that the CTO's re-assignment was temporary so that he could help "make sales calls and grow the business in the United States[.]" Id. Regarding the last factor, the court found that at least some of Daxtra US's business was obtained from Daxtra UK. Id. at 8-9.

In light of the foregoing, Judge Robinson concluded that "plaintiff ha[d] presented factual allegations that suggeste[d] with reasonable particularity the possible existence of the requisite contacts between Daxtra UK and Delaware." Id. at 9. Therefore, the Court permitted Kenexa to take jurisdictional discovery and denied Daxtra UK's motion, without prejudice to renew one month after the close of such discovery. Id. at 9-10.

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July 1, 2013

Judge Andrews claim construction opinion

Judge Andrews recently construed the following claim terms of U.S. Patent No. 7,155,451 related to "methods of automating the presentation of computer content," which is asserted against Microsoft Corp. and Apple Inc. in two civil actions. Robocast v. Microsoft, et al., C.A. No. 10-1055-RGA, 11-235-RGA (D. Del. June 28, 2013):

"show structure of nodes"
"multidimensional show structure of nodes"
"nodes"
"plurality of accessible resources"
"content"
"on-line search"
"interactively variable duration information"
"at least two of said nodes are spanned concurrently"
"persistent content window"
"without requiring user input"
"in accordance with said show structure"
"providing"
"search results"
"wherein said show structure is created in response to said search results received in
response to said on-line search"
"Related to said selected category"

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June 28, 2013

Judge Andrews denies motion to stay litigation

In a recent order, Judge Richard G. Andrews denied defendant’s motion to stay the litigation for “at least six months.” Microsoft Corporation v. Robocast Inc., C.A. No. 13-313-RGA (D. Del. Jun. 18, 2013). The instant action is related to another action—C.A. No. 10-1055 (the “main case”)—in which defendant is alleging patent infringement. As Judge Andrews explained, the main case is “likely to be tried in or near March 2014,” whereas the instant action is not likely to be scheduled for trial “any earlier than 2015.” Id. at 1. Defendant’s main argument in support of its motion for stay was that the instant action would “in all likelihood be resolved by the resolution of the main case.” Defendant further asserted that “it will take six months to see if the alleged infringing activity has any potential to make money.” Id.

Judge Andrews first noted that “both parties’ actions in this case seem to be motivated mostly by their perceived impact on the main case,” as the “[t]he potential economic consequences of this case are dwarfed by those of the main case.” Id. On the one hand, as Judge Andrews explained, he “would not normally stay [claims] of the nature presented by this case, as their interrelationship with the claims of the main case means that they all ought to go forward together.” Id. On the other hand, Judge Andrews acknowledged that defendant did not delay in making its request, the “stay would likely result in simplification of the issues,” and the stay would not “in actuality prejudice [plaintiff].” Id. at 1-2. Ultimately, Judge Andrews concluded that “the allegation of this case is the defendant is infringing [plaintiff’s] patent, and, while the economic consequences may be miniscule, I think on balance that this case too should proceed ahead.” Id. at 2.

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June 27, 2013

Judge Robinson issues claim construction opinion for patents involving plastic polymers and strikes expert testimony submitted in support of claim constructions

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:

"composition"
"ionic compatibilizer"
"copolyester containing a metal sulfonate salt"
"copolyester comprising a metal sulfonate salt"
"polyester"
"attached"
"metal sulfonate salt"
"cobalt salt"
"is present"
"melt blended resin" and "melt blend"
"a base polymer"
"transition metal catalyst"
"colorant"
"copolyester of polyethylene terephthalate"
"compatibilizer"

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.

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