Not as exciting as seeing Tiger 131 in the flesh at “Tankfest” in Bovington last month was Judge Payne’s denial of all three motions for summary judgment filed by the parties in this case. They consisted of a motion for partial summary judgment of noninfringement, a motion for summary judgment of no pre-suit damages, and a motion by the plaintiff for partial summary judgment that the defendant practiced certain limitations of the patents.
“131” is a big deal – as the only restored and running Tiger it’s the most famous tank in the world (Brad Pitt co-starred with it in “Fury”) , and our tank nut of a son (note the t-shirt is made up of tanks) was so, so happy to finally see it in person. It doesn’t run for “Tankfest” – you have to come during “Tiger Day”.
Anyway, if you must know, the reason for denial of the first two SJ motions was that – and stop me if you’ve heard this before – the court found that there were triable issues of fact. But the reason for the third is a little more complicated.
The plaintiff sought summary judgment that the defendant practiced certain limitations of the patent because the defendant’s infringement expert did not offer a rebuttal opinion as to certain limitations. Accordingly, it asked the court to find that the defendant practiced these unrebutted claim limitations as a matter of law.
Judge Payne concluded that opinions by an expert and a lack of rebuttal opinions was insufficient in this case to prove that the defendant practiced every element of the asserted claims, writing that “an expert’s rebuttal opinion is merely one avenue, not the only avenue, by which a litigant may choose to counter an opposing party’s expert opinion.” In addition, the court noted that the defense expert did explicitly contest the plaintiff’s opinions and explained why he believed the defendant did not directly infringe the asserted claims, thus demonstrating a genuine issue for trial.
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