In addressing various motions in limine filed in a case set to be tried to the bench this month, Judge Farnan denied the pending motions in limine all addressing the exclusion of evidence at trial. UCB, Inc. v. KV Pharmaceutical Co., C.A. No. 08-223-JJF, Memo. Op. (D. Del. Mar. 9, 2010). In one motion, plaintiffs sought to preclude the defendant from asserting its on-sale bar defense because they did not assert such a defense during discovery. The court denied the motion, finding that plaintiffs did not demonstrate any “actual harm or prejudice” they will incur if the defense is allowed. Furthermore, plaintiffs could not point to any specific discovery they were unable to complete, and in fact responded to defendant’s motion for summary judgment on the issue. Id. at 6.
Judge Farnan denied another pending motion in limine on similar grounds finding that defendant was timely in asserting a specific non-infringement defense where it argued the general theory in summary judgment and claim construction. The court found that the issue has long been known and the fact that the “precise” argument was not “expressly disclosed” did not warrant granting the motion. Id. at 8.