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ARTICLE · 14 NOVEMBER 2023

Contentions & Expert Reports: A Match Made In [Someplace]

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The interplay between contentions and expert reports in a patent case always requires considered judgment. The common sense rule that an expert may "expand on" but not "deviate from"...

United StatesIntellectual Property
Ted Mathias
Ted Mathias

The interplay between contentions and expert reports in a patent case always requires considered judgment. The common sense rule that an expert may "expand on" but not "deviate from" a party's contentions is easy to say but at times more difficult to practice. The role of an expert plainly is not to simply parrot contentions drafted by the attorneys. But contentions are supposed to provide notice of a party's arguments, and that notice function would cease to exist if expert reports were not meaningfully limited by the disclosures in a party's contentions.

Judge Dein determined in Cozy, Inc. v. Dorel Juvenile Group, Inc., No. 21-10134-JGD (D. Mass. Nov. 6, 2023), that Cozy's expert had provided a new infringement theory rather than simply "specif[ying] the application of a disclosed theory." Cozy did its expert no favors. It successfully sought leave to amend its supplemental contentions to avoid having "the expert reports[] read completely different from

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