Failure to Object to Prior Art Evidence at Summary Judgment Bars Objection at Trial

Plaintiff's motion in limine to exclude physical examples of allegedly unauthenticated prior art was denied. Defendant's "Statement of Uncontroverted Facts and Conclusions of Law" filed in support of summary judgment claimed that the item in dispute was prior art and plaintiff's "Statement of Genuine Issues of Material Fact" did not dispute that contention. "In opposing summary judgment, [plaintiff] chose not to dispute that these two items were prior art, opting instead to argue that [they] were not 'invalidating prior art.'. . . [Plaintiff] cannot now be heard to argue that there is a dispute over those items’ status as prior art."

Accentra, Inc. et al v. Staples, Inc., 2-07-cv-05862 (CACD October 21, 2010, Order) (Collins, J.)