No Summary Judgment Based on Late Disclosed Noninfringement Argument

The court denied defendant's motion for summary judgment of noninfringement of plaintiff's HVAC patent. "[Defendant] argues that it cannot be liable for direct infringement because it only sells individual HVAC units, not HVAC systems, and the [patent-in-suit] requires an HVAC system that is operational. . . . [I]t was not until 11:19 p.m. on the last day of fact discovery . . . that [defendant] added this contention as a defense, by supplementing its interrogatory response on non-infringement. . . . The parties are represented by highly regarded patent lawyers. How can it be that a fundamental contention - defendant does not sell the accused system - was not even identified by either party until the last minutes of fact discovery? Indeed, the record is bereft of all meaningful evidence relating to this issue, with [plaintiff] arguing that it had no notice of the contention and, therefore, no opportunity to pursue related discovery, and [defendant] arguing that it had no responsibility to give any more notice of its defense than it did because it is [plaintiff's] ultimate responsibility to prove direct infringement. . . . [Defendant] equivocated and failed to provide any evidence (like sales figures) that could have alerted [plaintiff] to the issue. [Defendant] did not play by the rules; therefore, it must suffer the consequences. [Defendant's] motion for summary judgment is denied in this regard. The court will address at the pretrial conference whether [defendant] will be precluded from presenting such a defense at trial."

Carrier Corporation v. Goodman Global Inc. et al, 1-12-cv-00930 (DED August 14, 2014, Order) (Robinson, J.)