Tuesday, October 20, 2009

Is previously undisclosed prior art admissible at trial to show the state of the art? It depends on the court.

Plaintiffs' motion in limine to exclude defenses and prior art disclosed 31 days before trial was granted in part. "[Defendant argued] that the evidence disclosed in its §282 Notice is intended to show only the 'state of the art' and not prior art, which would exempt it from disclosure under Local Patent Rules 3.1 and 3.4. . . . I do not find this argument persuasive. It is not up to a party to decide if and/or when it would like to comply with the Local Patent Rules. If [defendant] intended to use publications/documents to establish the state of the prior art, then it was required to disclose them over two years ago."

Emcore Corp. et al. v. Optium Corp.,
(PAWD October 16, 2009, Order) (Ambrose, J.)

Plaintiff's motion in limine to exclude certain prior art was granted in part. "Although [defendant] is correct that it may use certain items to show the state of the art, the extent to which [it] may use the references depends largely on the disclosures in [its] expert report. Although [defendant's] expert may testify as to what references were considered, simply listing references as having been considered is insufficient to obtain the admissibility of all of those references."

Abstrax, Inc. v. Dell, Inc. et al., 2-07-cv-00221
(TXED October 16, 2009, Order) (Everingham, M.J.)

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