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Judge Stark Grants Motion to Strike Infringement Contentions, Denies Motion to Strike Expert Opinion

Chief Judge Stark recently issued two oral orders regarding motions to strike in the case of Greatbatch Ltd. v. AVX Corporation et al., C.A. No. 13-0723-LPS (D. Del. Aug. 17, 2015). First, Judge Stark granted a motion to strike an amended claim chart. Judge Stark found that the “late-filed” contentions included a “new infringement theory [that] is inconsistent with its previous theory, in that the previous theory was that a claim limitation could be found at least in one specific location, while its present theory is that the claim limitation is NOT found in that same specific location.” The Court concluded that because “Defendants relied on Plaintiff’s previous theory as the basis for their non-infringement and invalidity cases throughout fact discovery and for opening expert reports,” the “Defendants are likely to suffer unfair prejudice if Plaintiff’s late-filed contentions are not stricken, prejudice which could not be cured without dramatic change to the case schedule, which includes summary judgment motions being filed a week from now.”

Second, Judge Stark denied the Plaintiff’s motion to strike portions of the Defendant’s expert report. Plaintiff sought to have the expert’s opinion stricken because it relied on a document that had not previously been produced and because it was based on the expert’s observations of the Defendant’s manufacturing process. The Court explained: “Plaintiff has not shown that it has suffered, or is likely to suffer, any significant prejudice from Defendants’ belated production of a single document. Furthermore, regarding Defendants’ expert’s reliance on his personal observations of the manufacturing process, the record does not establish that Plaintiff asked to observe Defendants’ manufacturing process, and Defendants’ expert’s reference to the manufacturing process is not untimely. Whatever prejudice Plaintiff may have suffered, or may suffer in the future, does not justify the requested relief (i.e., striking the entirety of Defendants’ expert’s opinion for one of the accused products as it relates to the ‘779 patent).”

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