In Greatbatch Ltd., v. AVX Corp., C.A. No. 13-723-LPS (D. Del. Sept. 22, 2015), Chief Judge Leonard P. Stark (i) denied defendants’ motion to strike plaintiff’s “Percolation Network” theory of infringement; and (ii) denied plaintiff’s motion to strike defendants’ newly disclosed prior art references. As to defendants’ motion to strike plaintiff’s infringement theory, Judge Stark found that “whatever prejudice Defendants may have suffered (or will suffer) from Plaintiff[’s] . . . ‘percolation network’ theory of infringement is outweighed by other factors, including the importance of the information Defendants seek to strike.” Id. at 2. Judge Stark explained that defendants themselves acknowledged that the theory “is the entirety of the [plaintiff’s] infringement case for the ’779 patent.” Judge Stark also noted that plaintiff’s expert “in effect disclosed the . . . theory in his opening expert report,” and therefore defendants “failed to show that they were unfairly surprised or meaningfully prejudiced.” Id. Judge Stark also found it “notabl[e]” that defendants’ “expert opined on a percolation network theory of infringement in his responsive expert report and Defendants had an opportunity to depose Plaintiff’s experts regarding this theory.” Id. Judge Stark also found the other three Pennypack factors to weigh in plaintiff’s favor, and thus denied defendants’ motion to strike. Id.
Denying plaintiff’s motion to strike defendants’ newly disclosed prior art references, Judge Stark first found that plaintiff “has not specifically articulated what unfair prejudice it may suffer if Defendants’ allegedly late disclosure of prior art references and combinations is not stricken.” Id. at 3. Second, Judge Stark explained that “whatever prejudice Plaintiff may have suffered (or will suffer) is outweighed by other factors, including the importance of the information Plaintiff seeks to strike.” Id. Lastly, the court noted that it did not find “willful deception or flagrant disregard of any court order. To the contrary, the Court intended – by issuing its Order of July 28, 2015 – that Defendants would finally identify their invalidity contentions by August, 17, 2015, and this is exactly what Defendants did.” Id. (internal citation omitted).