Friday, September 9, 2011

"We Had to Look Hard" Not Adequate Justification For Untimely Expert Report Addressing New Prior Art

The court granted defendant's motion to strike the supplemental report of plaintiff's invalidity expert which included a new prior art reference. "[P]laintiff says that the reference was 'not readily available,' but it does not suggest that its failure to discover the reference earlier is defendant’s fault. In any event, plaintiff does not identify any particular reason why it could not have found the reference in time to include in its main report. 'We had to look hard' is not an adequate justification for advancing an untimely new opinion."

Extreme Networks, Inc. v. Enterasys Networks, Inc., 3-07-cv-00229 (WIWD September 7, 2011, Order) (Crabb, J.).

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