There is as yet a fairly small body of caselaw on the effect of the five-year Thanos-induced recess on pending litigation. This order provides some guidance on the effect of the stay on the issue of claim narrowing.
This litigation has a lengthy history. Back in 2013, the parties (understandably) thought they were headed for a trial, and in response to the Court’s Order to Narrow the plaintiff cut its list of asserted claims down from those it has conducted discovery on.
We all know what happened next – Thanos snapped his fingers and for five years the case lay dormant until – well, no spoilers, but let’s just say that the case is back. (I think that’s what caused the stay – you may want to double check if you’re interested in details like that).
When it came back, one thing had changed. No, not Captain Marvel’s hair (but wasn’t it awesome?) The plaintiff now wanted to assert some of the claims that it had not included in its list in 2013. Judge Gilstrap noted that the Defendants did not dispute the addition of the claims during discovery – it was not until the plaintiff filed expert reports that it objected to the additional claims being asserted. After reviewing the objections, Judge Gilstrap found them not well taken, finding that the Order to Narrow was directed to a prior trial and should not be imposed on the current post-Thanos trial.
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