Plaintiff's motion to strike portions of a defense expert's report which included an opinion about a prior art reference that was not disclosed in defendant's invalidity contentions or interrogatory responses was denied. "[Defendant] is essentially reserving the right to advance a contention that is contingent upon the position taken by [plaintiff]. The issue here is whether Patent Local Rule 3-3 requires a party to assert a claim of invalidity which is only conditional and contingent on the opposing party’s position. Neither party has cited the Court to any authority directly on point. In the absence of such authority, the Court concludes that Rule 3-3 does not require such at least in this case where the contingency is allegedly not clearly anticipated by the Court’s claim construction."
Medtronic, Inc. v. AGA Medical Corp., 3-07-cv-00567 (CAND March 2, 2009, Order)