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Judge Robinson denies motion to serve supplemental invalidity report regarding newly discovered prior art.

Judge Sue L. Robinson recently denied a defendant’s motion to supplement an invalidity expert report to include newly discovered prior art.  Round Rock Research, LLC v. Sandisk Corp., Civ. No. 12-569-SLR (D. Del. Sept. 24, 2014).  The newly discovered prior art was “a reference that has always been (perhaps to the exclusion of others) in the possession, custody, and control of” the defendant, but its relevance was only discovered by the defendant after the plaintiff’s infringement report was served.  The plaintiff complained that it would need substantial discovery into this prior art reference if the defendant was permitted to supplement.  The Court agreed, and explained “[g]iven the extensive discovery in which these parties have engaged, there comes a time to close the record.  I conclude that this is the time.”

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