A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: MTS

"While opting to seek forgiveness rather than permission may not rise to the level of bad faith, there are consequences to such behavior . . ."

Andrew E. Russell, Dec. 11, 2023
MTS Motion to Strike

"Please, dear Court, don't strike our new argument that totally prejudices the other side." Lampos Aritonang, Unsplash

It can sometimes be tough to decide whether to ask the Court permission, or to just do something. The answer can vary depending on the thing you are doing and the judge.

But certain things clearly require permission. Say, for example, offering a "supplemental" expert report with a new damages calculation almost two years after the reply expert report, and only 19 days before trial:

There is no dispute that MED-EL failed to disclose Barry Sussman’s most recent damages calculations based on survey results (set forth in Paragraph 11 of his Supplemental Expert Rebuttal Report) during the expert disclosure period. Indeed, the …
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Disagreement With the Substance of Infringement Contentions Does Not Mean Those Contentions Are Inadequte—And Can't Be the Basis to Withhold Discovery

Andrew E. Russell, Oct. 31, 2022
Motion to Strike MTC

"I'm a motion to strike, not a stealth motion for summary judgment" Braydon Anderson, Unsplash

One of the more common District of Delaware questions you get as local counsel is "can we move to strike opposing counsel's (infringement or invalidity) contentions?"

That may seem like a simple question, but the answer depends many things, like: What is wrong with those contentions? How were our contentions in comparison? Which judge is this in front of? How long ago did they serve them? (And, sometimes, things like: Why are you asking this now, when we are two weeks from trial?)

Challenging contention disclosures can be tough even if you have what seem like fairly good arguments. The Court is generally not …

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Disclosure of Expert Theory in Claim Construction Brief Defeats Later Motion to Strike

Andrew E. Russell, Sept. 28, 2020
MTS Pennypack

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 …

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