The opinion of the court was delivered by: Judge Joan B. Gottschall
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Plaintiff Murata Manufacturing Co., Ltd. ("Murata") has filed a motion to strike and bar portions of defendants Bel Fuse, Inc. et al.'s (collectively "Bel") brief in opposition to Murata's motion for summary judgment of literal infringement of Murata's U.S. Patent No. 5,069,641 ("the '641 patent"). Specifically, Murata seeks to strike five allegedly new theories of noninfringement that it claims Bel raises for the first time in its brief in opposition, and to further bar Bel from raising those theories at trial. Murata additionally seeks to strike the declarations of Bel's expert witnesses R. Lee Hill ("Hill") and Peter G. Bittner III ("Bittner") which were submitted as exhibits accompanying Bel's brief in opposition. For the reasons set forth below, Murata's motion is granted in part and denied in part.
1. First Alleged Theory of Noninfringement
In response to Murata's motion to strike, Bel has withdrawn any argument, in its brief or at trial, based upon the first allegedly novel theory of noninfringement; the reverse doctrine of equivalents. See, e.g., Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1368 (Fed. Cir. 2002). The court therefore strikes that theory of noninfringement from both Bel's opposition to Murata's motion for summary judgment of literal infringement and at trial.
2. Second Alleged Theory of Noninfringement
Murata argues that Bel also presents a new theory of noninfringement with respect to the Family 1 modular jacks, viz., that the contactors are not "electrically connected" to the noise suppressing elements because the contactors engage pins in a toroid base which, in turn, fit into holes in the printed circuit board, engaging the traces on the board. Murata's Mot. to Strike § II ¶ 2. Bel retorts that its statement in opposition to Murata's motion to dismiss claims that "the Family 1 connectors still do not infringe because they lack a contactor being electrically connected with the electronic element 'by a wire on the printed board' as required by the claims." Bel's Opp. at 13. Bel cites the expert report submitted by Hill during discovery, which claims that "the capacitor is not 'electrically connected' to any contactor by a 'wire on the printed board.' Rather, the contactors are connected to the resistors or to other components. Bel's Brief in Opp. Ex. 2 ¶ 55. Hill's report thus clearly indicates that the connection between the contactor and the capacitor is not a direct contact mediated only via a "wire on the board," but that "other components" intervene. Id. Even a cursory glance at the illustrations of the Family 1 components at issue provided in both parties' briefs renders this argument apparent.
Murata replies, cryptically, that Bel's explanation of its argument is not more precise, but rather more abstract. Murata's Reply Brief 7-8. Furthermore, it claims that because the phrase "other components" appears, Bel can then continue to plug any component it wants into its defense theory. Id. at 8. Murata claims that Bel's factual submissions and arguments therefore violate Federal Rule of Civil Procedure 26(a)(2)(B), which requires disclosure in expert reports of "a complete statement of all opinions to be expressed and the basis and reasons therefore." Id. at 8. Murata complains that the Hill report says nothing about "intermediate pins" or "toroid bases" despite its alleged requirement to do so. Id.
Murata's argument, however, is a canard; Hill's report states that there is not a direct connection from contactor to "wire on the board" to capacitor, but rather that another component intervenes and thus the accused device lies outside the scope of the claims. Bel is not required to list every possible permutation of potential components; rather, its argument is that the connection is not direct, but indirect. That much is clear from Hill's report, and a straightforward reading of the report should have put Murata on notice of Bel's argument in this respect. Moreover, Murata's invocation of Salgado v. General Motors Corp. avails it little. 150 F.3d 735 (7th Cir. 1998). Salgado describes the requirement that an expert's report must be sufficiently "detailed and complete" so that opposing counsel will not be ambushed at trial. 150 F.3d at 741 n.6. Hill plainly asserts that there is no connection between the contact and the capacitor via a "wire on the board", but rather a connection between the contacts and resistors and other components. Bel's Brief in Opp. Ex. 2 ¶ 55. The court finds that Hill's argument is sufficiently detailed and complete, and supported by facts, so as to adequately satisfy the requirements of Rule 26(a)(2)(B).
Nor is Murata's argument that Hill's prior report is contradicted by the new report convincing. The court's understanding of electronics is not so unsophisticated as to fail to comprehend the difference between "connected" (implying a physical contact connection) and "electrically connected" (which implies existence of a conductive pathway through which current may flow from one component to another*fn1 ). The court therefore finds that Bel adequately disclosed the facts underlying this particular argument and denies Murata's motion to strike this particular theory of noninfringement.
3. Third Alleged Theory of Noninfringement
Next, Murata argues, also with respect to Family 1, that the contactors are not connected via a "wire on a printed board" to noise suppressing elements because "the terminals are connected to wires wound around toroids and only part of this path is a trace." Murata's Mot. to Strike § II ¶ 3.
Bel counters with the argument that "the Family 1 connectors do not infringe because they lack a terminal that is 'electrically connected' to the electronic element 'by a wire on the printed board' as required by the claims." Bel Opp. at 16. Bel's expert report by Hill states explicitly that none of the contactors "are 'electrically connected' to any of the terminals . because of the presence of the isolation transformers." Brief in Opp. Ex. 2 ¶ 60. Bel contends that the presence of the isolation transformers precludes any ...