Summary judgment is denied in polymer dispute
The Dow Chemical Company v. Nova Chemicals Corporation (Canada), et al., Civil Action No.05-737-JJF, May 20, 2010.
Farnan, J. Defendants’ motion for summary judgment of noninfringement and/or invalidity is denied. The parties agree that portions of the invalidity argument are moot due to claim construction, and are therefore denied as moot. Defendants’ motion to strike untimely expert declarations is denied.
There are two patents-in-suit which relate to polymer blends. Defendants seek to strike expert reports as untimely, authored to address the summary judgment argument. The court finds that the opinions are not new, but merely elaborate on opinions already provided. Therefore, they are not stricken. As for infringement, defendants contend plaintiff is unable to prove the accused product contains the required Component A or Component B. Defendants challenge the testing of the accused product under different polymerization conditions with a different co-catalyst. Furthermore, they contend that because the accused product is not heterogeneously branched, there can be no Component B. The court finds that there are issues of material fact which preclude summary judgment.
