The court granted plaintiff's motion to preclude evidence of defendants' new obviousness defense based on the combination of prior art references. The prior art references were disclosed individually in defendants' discovery responses and expert reports, but not in the combination asserted in defendants' summary judgment motion. "The Court finds the defendants’ expert report to be wide ranging in listing bases for the defendants’ obviousness defense. As such, the absence of the [specific combination asserted in summary judgment] in this and all other documents that preceded the defendants’ motion for summary judgment is notable. The defendants had every opportunity to raise obviousness defenses during discovery and in fact did so. The Court views the defendants’ failure to timely raise this particular defense as a waiver, and grants the plaintiff’s motion to preclude on this issue."
Metso Minerals, Inc. v. Powerscreen International Distribution Limited et al., 2-06-cv-01446 (January 28, 2010, Memorandum of Decision & Order) (Spatt, J.)
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