Chief Judge Stark recently issued an order addressing several motions to strike or supplement contentions and to strike expert reports. Judge Stark first found that the plaintiff’s “final infringement contentions fail to provide Defendants adequate notice of ‘how the accused products allegedly meet [a certain] limitation’” because the contentions addressed only half of the Court’s claim construction of that limitation and appeared to rely, instead, on the plaintiff’s proposed construction, which had been rejected. Intellectual Ventures I LLC v. AT&T Mobility LLC, et al., C.A. No. 13-1668-LPS, Memo. Or. at 3-4 (D. Del. Feb. 14, 2017). Judge Stark found that this “failure to serve infringement contentions that apply the Court’s claim construction was neither substantially justified nor harmless,” which supported striking the contentions. Id. For the same reasons, Judge Stark also struck the plaintiff’s doctrine of equivalents contention for the same patent, which the plaintiff contended was “based on the same evidence” as its deficient literal infringement contention. Id. at 6. Judge Stark denied, however, a motion to strike the plaintiff’s infringement theory for a separate patent, which the defendant claimed was untimely because it was served two weeks before the close of fact discovery. The Court agreed that the “infringement theory, which is contained in its timely served infringement contentions, should not be stricken. While it appears [the plaintiff] had formulated its [theory] prior to August 2016, it was appropriately pursuing discovery with respect to that theory·in the preceding months, and it permissibly relied on the opportunity provided in the scheduling order to finalize infringement contentions after the Court’s claim construction order.” Id. at 9-10.
UPDATE: On May 19, 2017, Judge Stark denied a motion for reconsideration of his February 14 decision and granted summary judgment of noninfringement based the fact that “there is no genuine dispute that Defendants’ accused products do not infringe the asserted claims . . . [because] IV’s opposition to summary judgment depends entirely on a claim construction position the Court has rejected.” Intellectual Ventures I LLC v. Nextel Operations, Inc., et al., C.A. No. 13-1670-LPS, Memo. Op. at 12 (D. Del. May 19, 2017).