Thursday, November 10, 2011

Joinder of Affiliated Defendants Does Not Justify Late Identification of Prior Art

The special master recommended that defendants be precluded from asserting twenty new prior art references in their invalidity contentions without showing "extraordinarily good cause." "Counsel for the [foreign defendants] argues that they are entitled to bring this new prior art now because they are new to this lawsuit and this is their first opportunity to file Invalidity Contentions. However, this argument only goes so far; the [foreign] defendants have extended it beyond its logical bounds. Corporate separateness has been carefully guarded in this case, but to permit a restart when the parties are related and share a common counsel ignores logic. [Defendants] do not dispute that throughout the litigation, all of the [defendants], whether officially brought into the litigation or not, have been represented by common counsel. . . . They had more than one vehicle for supplying prior art references to the party [defendants], and it was in their interest to do so. Defendants should not, under the guise of the Foreign [defendants], be allowed to avoid the [case management schedule] by providing out of time a multitude of new art that should have been presented at the appropriate time."

Nuance Communications, Inc. v. Abbyy Software House, et. al., 3-08-cv-02912 (CAND November 7, 2011, Order) (Addy, Special Master)

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