The question was whether the defendant’s experts could express opinions regarding noninfringing alternatives.
The background of the dispute was that the plaintiff had accused a particular product, but during the course of the case determined not to proceed with that claim. The defendant’s subsequent rebuttal expert reports included opinions that that product was a noninfringing alternative. The plaintiff objected to those opinions as not disclosed in response to discovery requests, but the court found that they were in fact properly disclosed giving the late stage at which the plaintiff ceased claiming that the product infringed. “Had Plaintiff decided to abandon the Omnis IDS/Suricata Product earlier perhaps it would have more solid footing to object,” Judge Payne wrote, “but that is not the case here.”
But the court found that the expert’s method of determining that the product was noninfringing – “uh, they’re not accusing it of infringement any more” – was improper, and accordingly precluded the defendant’s experts from offering those opinions.
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