Failure to Serve Infringement Contentions Warrants Summary Judgment of Noninfringement

The court granted plaintiffs' motion for summary judgment of noninfringement where defendant failed to served infringement contentions. "[Defendant] admits that it has not served infringement contentions with respect to [one of the patents-in-suit], but argues that the only reason it has failed to do so is because [defendant] failed to timely provide it with the source code necessary to formulate those contentions. This statement is made for the first time now, only in opposition to this motion. [Defendant] never previously requested discovery assistance from this Court related to the [patent-at-issue] that it now claims was crucial to meeting its disclosure obligations that passed months ago. . . . [Section 1(f) of the Procedures for Patent Cases -- allowing amendment of contentions 'upon timely showing of good cause'] is not intended for those parties who knowingly disregard a Scheduling Order with the intention of later requesting to amend their infringement contentions to wholesale add contentions related to one patent -- such a request would not be timely or made with good cause (and may, in truth, be an attempt to 'game the system' in order to gain a tactical advantage that prejudices the other side)."

SAP AG, et. al. v. Datatern, Inc., 1-11-cv-02648 (NYSD June 28, 2012, Order) (Forrest, J.).