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Pactiv Corp. v. Multisorb Techs., Inc.

United States District Court, Seventh Circuit

May 29, 2013

Pactiv Corp.
v.
Multisorb Techs., Inc.

STATEMENT

HARRY D. LEINENWEBER, Magistrat Judge.

Before the Court is Defendant Multisorb Technologies, Inc.'s ("Multisorb") Motion to Strike and Exclude Portions of the Expert Report of Dr. Lisa D. Detter-Hoskin and Alleged Prior Art Not Disclosed in Pactiv's Invalidity Contentions. For the reasons stated below, Defendant's motion is GRANTED.

I. BACKGROUND

The Court has described the factual background of this action previously. See, e.g., ECF Nos. 226, 290, 320. The parties in this patent infringement action are in the midst of exchanging expert reports. Plaintiff Pactiv, LLC ("Pactiv") submitted the report of Dr. Lisa D. Detter-Hoskin (the "Report") in support of its case. Multisorb seeks to strike and exclude portions of the Report.

On January 17, 2012, Pactiv served its Final Unenforceability and Invalidity Contentions Pursuant to Local Patent Rule 3.1 ("Invalidity Contentions"). See Def.'s Mem. in Support of Mot. to Strike, Ex. C, ECF No. 348-4. The Invalidity Contentions disclosed four prior art references: United States Patent Nos. 4, 524, 015, 4, 992, 410 and 4, 996, 068 and a prior publication (Ramakrishnan, Iron Powder from Iron Scrap., Conservation & Recycling, Vol. 6, No. ½, pp. 49-54, 1983).

On May 13, 2013, Pactiv served the Report on Multisorb. In it, Dr. Detter-Hoskin cites to three patents (Yoskikawa 773, Nakamura 972 and Pemsler 262) and two journal articles (Huthen and Pemsler 1990) that were not included in Pactiv's Invalidity Contentions. Multisorb argues that this disclosure of "New Prior Art" not provided in Pactiv's Invalidity contentions is improper. Multisorb also argues that Pactiv has made new invalidity arguments not made previously by relying on combinations and citations of prior art not disclosed previously in its Invalidity Contentions. 10C461 Pactiv Corp. Vs. Multisorb Techs., Inc. Page 1 of 4

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 37(c), if a party fails to provide information or identify a witness as required under Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence unless the failure was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1).

Under Local Patent Rule 2.3, a party is required to provide:

(1) identification, with particularity, of each item of prior art that allegedly anticipates each asserted claim or renders it obvious...
(2) a statement of whether each item of prior art allegedly anticipates each asserted claim or renders it obvious. If a combination of items of prior art allegedly makes a claim obvious, each such combination, and the reasons to combine such items must be identified;
(3) a chart identifying where specifically in each alleged item of prior art each element of each asserted claim is found, including for each element that such party contends is governed by 35 U.S.C. §112(6), a description of the claimed function of that element and the identify of the structure(s), act(s), or material(s) in each item of prior art that performs the claimed function.

L.P.R. 2.3(b)(1)-(3). Local Patent Rule 3.1 requires that Final Unenforceability and Invalidity Contentions must contain the information ...


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