Even when plaintiffs know of the potential weak spots in their infringement cases, they sometimes fail to address DOE until too late, or they offer a DOE analysis so weak that it gets excluded or wiped out by summary judgment.
That's what happened last week, when Chief Judge Stark struck a DOE opinion after a plaintiff tried to squeak by on the idea that its late DOE argument should be permitted because it never affirmatively disclaimed DOE:
Arendi's passing reference to DOE in its complaints followed by its lack of affirmative disclaimer of DOE theories (see, e.g., C.A. No. 12−1595 D.I. 238 at 5) ("Arendi has never asserted that its claims were limited to literal infringement") does …
