Nokia And The Burden Of Burdens

Much like secondary considerations, non-infringing alternatives fit imperfectly within many scheduling orders. The patentee has the burden of proof on damages, but it is the accused infringer who must prove that any non-infringing alternatives (which frequently drive damages verdicts) were available during the damages period and acceptable to customers who purchased the accused product. Where a case schedule provides for three rounds of expert reports, the issue usually resolves itself: the patentee presents its damages experts, the accused infringer's damages experts respond and address non-infringing alternatives, and the patentee's experts can critique the non-infringing alternatives in reply reports. But when there are only two rounds of expert reports, do accused infringers need to address non-infringing alternatives in the opening round of reports?