Judge Andrews recently resolved several motions for summary judgment and to exclude evidence and testimony in the patent battle between EMC and PureStorage. Among these, Defendants PureStorage moved for summary judgment of invalidity of a patent-in-suit, and Plaintiff EMC responded with two declarations swearing behind the reference relied upon by Defendant. The Defendant then moved to strike these declarations and attached documents for having been disclosed too late. EMC Corp., et al. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, Memo. Op. at 20 (D. Del. Feb. 11, 2016).
Judge Andrews ultimately determined that the evidence should not be stricken. In support of this conclusion, Judge Andrews found that the swearing behind evidence was “of critical importance to the issue of invalidity” and that there was “no reason to believe, at this point, that the trial will be disrupted if the declarations are not struck.” Id. at 23. Judge Andrews further found that there was no incurable prejudice to the Defendant because “aside from the [reference at issue,] all but one of Pure’s invalidity references predate March 2002,” so it had not shown prejudice “on the ground that, had it known earlier that EMC would assert a March 2002 conception date, it would have searched for prior art dated before March 2002.” Id. Moreover, Judge Andrews found no bad faith or willfulness, accepting as reasonable EMC’s explanation that the newly disclosed documents had been in the declarant’s possession, not EMC’s, and therefore EMC had not sought evidence of earlier conception and reduction to practice until they had received PureStorage’s expert report that fully described the relevant anticipation theory. Id. at 24-25.
In addition to other motions, Judge Andrews also addressed a motion to exclude expert opinions that were supposedly inconsistent with the Court’s claim construction order. Ultimately, His Honor found that “[w]hen a court does not construe a term or orders that ordinary meaning applies, expert testimony on the understanding of a skilled artisan is appropriate to assist the jury.” Thus most of the expert’s opinions were permissible with the exception of two parts of the expert’s opinions that took positions regarding claim scope contradictory to the Court’s recent supplemental claim construction order. Id.at 35-37.