Infringement Contentions May Not Qualify Priority Date With “No Later Than”

The court granted defendant's motion to strike plaintiff's infringement contentions regarding an open-ended priority date. "[Plaintiff] asserts that 'each asserted claim of the patents-in-suit [is] entitled to a priority date no later than September 7, 2000.' [Defendant's] concern is that [plaintiff] may use the 'no later than' language to assert a much earlier priority date further down the line in this litigation — as it appears [plaintiff] has done in [related cases]. [Plaintiff] does not address this argument in its opposition, nor did it meaningfully respond to it during oral argument. Accordingly, the language 'no later than' shall be stricken from the AICs without leave to amend. The asserted priority date is September 7, 2000."

Blue Spike, LLC v. Adobe Systems, Inc., 4-14-cv-01647 (CAND January 26, 2015, Order) (Corley, M.J.)