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ARTICLE · 17 MAY 2024

Patent Damages Procedural Fails Keep Coming

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Last month I checked in on a discovery dispute regarding the timeliness of disclosing noninfringing alternatives (NIAs) in a case with only two rounds of expert reports.

United StatesIntellectual Property
Ted Mathias
Ted Mathias

Last month I checked in on a discovery dispute regarding the timeliness of disclosing noninfringing alternatives (NIAs) in a case with only two rounds of expert reports. I noted that the problem (defendant waiting until the second round of reports to address NIAs) is usually avoided in cases with three rounds of expert reports. Now we have a new month, a new dispute despite three rounds of expert reports, and a new twist.

In Rex Computing v. Cerebras Systems, No. 21-525-MN (D. Del. Apr. 15, 2024), the patentee sought to strike portions of a rebuttal expert report directed to four noninfringing alternatives. The defendant had briefly identified the NIAs in an interrogatory response, but the patentee argued that the expert's report improperly "include[d] technical details constituting contentions that were not fully disclosed during fact discovery."

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