Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Plaintiff filed answering claim construction brief along with a supplemental declaration of plaintiff’s expert Harold B. Hopfenberg.  Defendant moved to strike the declaration containing more than 46 pages of allegedly new opinions as untimely and unauthorized, complaining that it will be prejudiced at the Markman hearing without an opportunity to cross examine this expert on the new opinions.  Plaintiff responded that the scheduling order does not preclude supplemental expert declarations nor does it impose a deadline for expert depositions.  Rather than excluding “critical evidence,” the court notes plaintiff has not engaged in willful deception.  The court postpones the Markman hearing for a month during which time defendant may depose the expert with respect to the supplemental declaration and may file a reply brief in support of its proposed claim construction.  Defendant may move for monetary sanctions within 7 days after the Markman hearing if it believes any unfair prejudice caused by plaintiff’s conduct has not been ameliorated.  The court denies defendant’s request to strike plaintiff’s expert declaration contained in its answering claim construction brief as non-compliant with LR 7.1.2(a) which requires all requests for relief to be presented by motion.