In denying defendant's motion for summary judgment of invalidity based on anticipation, the court prohibited defendant from relying on a prior art reference that was mentioned twice in its motion but "heavily" relied upon it its reply. "By failing to adequately explain its reliance on [the reference] or cite to it in its statement of facts, [defendant] has denied [plaintiff] an opportunity to properly respond to the more specific anticipation arguments made in its reply brief. While [defendant's] behavior may fall short of waiver, the Court finds it would be inequitable to rely on [that reference] to invalidate [plaintiff's] patent, as doing so would entail relying on arguments to which [plaintiff] did not have a proper opportunity to respond."
Taser International Inc. v. Stinger Systems, Inc., 2-07-cv-00042 (AZD March 31, 2010, Order) (Murguia, J.)
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