Defendant’s Stipulation to Infringement "Under the Present Claim Construction" Does Not Justify Change in Order of Proof at Trial​

The court denied defendants' motion to stipulate to infringement "under the present claim construction" and change the order of proof at trial to begin with defendants' invalidity claims. "[T]he Court anticipates that in light of the parties’ positions [at summary judgment], it will likely be necessary to construe the term 'acrylate/C10-30 alkyl acrylate cross-polymer' at trial, and that the Court expects the parties to provide additional evidence on that issue at trial. Because that issue bears on infringement as well as invalidity, the defendants’ stipulation to infringement under the 'the present claim construction' is no real stipulation at all. . . . [C]ourts have on occasion acquiesced in the request of the accused infringer to present its case first at trial. In several of those instances, however, the courts have allowed the patentee to present background information at the outset before the accused infringer begins its invalidity challenge. That sequence seems fair to the Court in this case, particularly in light of [plaintiff's] having organized the appearance of its background witnesses around the assumption that it would go first at trial."

Allergan, Inc. v. Teva Pharmaceuticals USA, Inc. et al, 2-15-cv-01455 (TXED August 25, 2017, Order) (Bryson, CJ)