No Exclusion of Expert’s Infringement Theory Plausibly Supported by Vague Infringement Contentions

The court denied defendant's motion to strike portions of the report of plaintiff's technical expert that contained previously undisclosed infringement theories. "[Plaintiff] has pointed to words, sentences, and figures in its contentions that support [its expert's] theories. Although in context, [plaintiff's] contentions may have led [defendant] to assume that [plaintiff] was identifying a particular aspect of the [accused] product, [defendant] did not seek assurances that this was actually the case. . . . It was incumbent on [defendant] to seek clarification, through written discovery, the meet and confer process, or motion practice, on any infringement contention that was slightly vague or unclear, particularly as the case progressed. Plaintiff has raised plausible arguments that its contentions support [the expert's] infringement opinions. . . . The fact that [defendant] had a full opportunity to respond to [the expert's] theories, both through expert report and deposition, also weighs against exclusion of his opinions."

Realtime Data LLC d/b/a IXO v. Actian Corporation et al, 6-15-cv-00463 (TXED April 17, 2017, Order) (Love, MJ)