SAP AG, et. al. v. Datatern, Inc., 1-11-cv-02648 (NYSD June 28, 2012, Order) (Forrest, J.).
Monday, July 2, 2012
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)."