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Judge Robinson precludes defendant from pursuing an anticipation defense for which its expert provided no opinion

Judge Robinson recently considered plaintiff Netgear’s motion for summary judgment as to whether certain prior art references could qualify as prior art. Netgear, Inc. v. Ruckus Wireless, Inc., C.A. No. 10-999-SLR (Oct. 16, 2013). Defendant conceded that its expert had no opinion as to whether the references anticipated the patent in suit, but opposed Netgear’s motion with five facts it claimed were disputed. Id. Judge Robinson was not persuaded, however, noting that “as far as the court can discern, defendant has offered no evidence on the issue of anticipation, only attorney argument.” Id. at 1-2. In light of that, Judge Robinson declined to offer “what is essentially an advisory opinion” as to whether the disputed references were prior art. Id. at 2. Judge Robinson cautioned that “[t]he court has neither the time nor the resources to fill in the gaps of defendant’s case, and declines to allow defendant to pursue its anticipation defense on the record it made (or, more accuately, failed to make) during expert discovery. Id.

Netgear, Inc. v. Ruckus Wireless, Inc., C.A. No. 10-999-SLR (Oct. 16, 2013)

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