Between February and April 2008, Defendants filed an initial report, a rebuttal report and a reply report from their testifying expert pursuant to the expert-disclosures schedule set forth in the Local Patent Rules. In June 2008, Defendants submitted a declaration from their expert in support of their motion for summary judgment of non-enablement. Plaintiff moved to strike the declaration as an unauthorized supplemental expert report.
Declaration Qualified as a Supplemental Expert Report: The Court granted the motion, finding that (1) the summary judgment declaration qualified as an additional expert report that supplemented the expert’s previous opinions, and (2) the additional expert report was untimely and prejudicial to Plaintiff. Specifically, the Court noted that the declaration stated “it is my opinion that” or “in my opinion” at least twenty-seven times and concluded by stating “I continue to be of the opinion that . . . .” Based on these statements, the Court deemed the declaration to be an amendment or supplementation to the expert’s initial report. As such, the declaration was subject to Local Patent Rule 7.3 which provides that:
Because of the complexity of the issues often present in patent cases, amendments or supplementation to expert reports after the deadlines provided here are presumptively prejudicial and shall not be allowed unless (a) the tendering party shows cause that the amendment or supplementation could not reasonably have been made earlier and (b) all reasonable steps are made to ameliorate the prejudice to the responding party.
Because Defendants failed to make the necessary showing under Local Patent Rule 7.3, the Court granted Plaintiff’s Motion to Strike Defendants’ summary judgment declaration.