Friday, October 14, 2011

Failure to File Motion Requesting Testimony at Markman Hearing Bars Submission of Expert Declaration in Support of Markman Briefing

The court granted defendants' motion to strike an expert declaration submitted in connection with plaintiff's claim construction briefing. "[T]he Court stated that the parties would not be permitted to call witnesses or present extrinsic evidence at the Markman hearing, because no party had timely noticed a motion seeking to present testimony at that hearing. To date, Plaintiff has not tendered such a motion before the Court. Because Plaintiff will not be permitted to present [its expert] or his testimony at the Markman hearing, it necessarily follows that Plaintiff cannot rely on [his] testimony to support its proposed definitions for the disputed terms."

U.S. Ethernet Innovations, LLC v. Acer, Inc., et. al., 5-10-cv-03724 (CAND October 12, 2011, Order) (Ware, J.)

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