Patentee May Not Modify Conception Date Disclosed in Infringement Contentions With Supplemental Interrogatory Response​

The court granted defendant's motion to strike plaintiff's supplemental interrogatory response and precluded plaintiff from asserting a conception date at trial earlier than the date disclosed in its preliminary infringement contentions. "[Plaintiff] had to disclose a specific date of conception and produce documentary evidence of that conception date in its Patent Local Rule disclosures. . . . [A]lthough [plaintiff] may have disclosed its proposed conception date in time for [defendant] to conduct discovery, that does not cure any prejudice resulting from [plaintiff's] failure to follow the local rules that 'require patent holders to ‘crystallize their theories of the case early in the litigation’ . . . . This poses a minimal burden for a patent holder, who should already know the conception date of a patented invention prior to commencing litigation.'. . . To the extent that [plaintiff] altered its conception date and evidence based on discovery, it had to amend its Rule 3 disclosures to include those changes. Because [plaintiff] did not do so, it cannot argue an earlier conception date than [its originally disclosed date], with respect to [defendant's] prior art."

Femto Sec Tech, Inc. v. Alcon LenSx, Inc., 8-15-cv-00624 (CACD May 16, 2017, Order) (Selna, USDJ)