Judge Burke held last week that providing a substantive response to an indefiniteness theory in a claim construction brief was sufficient to preserve that argument for a later rebuttal expert report.
Typically you'd see that kind of disclosure in a discovery response on reasons for validity, or maybe in an expert declaration opposing a claim construction position (as opposed to being set forth as argument).
But the holding here makes sense under FRCP 26(e), which requires supplementing discovery responses only if the "information has not otherwise been made known . . . in writing."
It looks like the Court meant it when it held, earlier this month, that "any substantive response" to a theory prior to rebuttal expert reports is sufficient to defeat a motion to strike.
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