“Overreaching” Expert Report Stricken With no Opportunity to Amend

The court granted defendant's motion to strike the report of plaintiff's damages expert for improperly relying on the entire market value rule and denied plaintiff the opportunity to submit an amended report. "Over the course of many years and more than a dozen patent trials, the undersigned judge has concluded that giving a second bite simply encourages overreaching on the first bite (by both sides). . . . [T]he trial date is only four days away and the parties and the Court have built their calendars around that date. To start over with a new royalty analysis would impose prejudice on the defense as well and disrupt the Court’s calendar, which is burdened with other trials set far into the future. Possibly, plaintiff can cobble together a royalty case based on other disclosed witnesses and evidence. Possibly not. If not, it is a problem clearly of plaintiff’s own overreaching and it will not be allowed a second bite at the apple."

Network Protection Sciences, LLC v. Juniper Networks, Inc., et. al., 3-12-cv-01106 (CAND September 26, 2013, Order) (Alsup, J.)