Unauthorized Amendment of Contentions Does Not Require Motion to Strike if the Issue is Clearly and Timely Raised by Letter

The court denied as moot defendant's motion to strike plaintiff's supplemental infringement contentions after plaintiff conceded the contentions should be withdrawn. "Except in response to the Court’s claim construction ruling, a plaintiff may only amend its infringement contentions with leave of Court, which requires a showing of good cause. [Plaintiff] never moved for such leave. . . . Thus, under the rules, [its] supplemental infringement contentions never had any operative effect, and [defendant's] motion was not technically necessary. . . . To be clear, however, accused infringers should not remain silent about 'amended' or 'supplemental' contentions served without a motion for leave and expect to avoid those contentions late in the proceeding. . . . But if the defendant has clearly and timely raised an issue with the plaintiff’s failure to seek leave -- as [defendant] did here by way of its [letter to plaintiff] -- the defendant need not then spend time moving to strike the 'amended' contentions."

Traxcell Technologies, LLC v. AT&T, Inc. et al, 2-17-cv-00718 (TXED August 14, 2018, Order) (Payne, MJ)