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Cequent Performance Products, Inc. v. Hopkins Manufacturing Corp.

United States District Court, E.D. Michigan, Southern Division

May 25, 2017

CEQUENT PERFORMANCE PRODUCTS, INC., Plaintiff,
v.
HOPKINS MANUFACTURING CORPORATION et al ., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE PORTIONS OF THE HORENSTEIN REPORT AND EXCLUDE DEFENDANTS' NEW INVALIDITY GROUNDS (ECF ## 76, 80)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.

         This is a patent infringement case. On March 23, 2017, Plaintiff Cequent Performance Products, Inc. filed a motion (1) to strike portions of Dr. Mark Horenstein's expert report (the “Horenstein Report”) and (2) to exclude Defendant Hopkins Manufacturing Corporation from relying upon new invalidity grounds that Cequent insists Hopkins did not timely disclose. (See ECF ## 76, 80.)[1] For the reasons stated at the April 26, 2017, hearing on the motion, and as further stated below, the Court GRANTS the motion in part and DENIES the motion in part.

         I

         Cequent asserts in its Complaint that Hopkins infringed three of Cequent's patents (collectively, the “Asserted Patents”) that relate to electronic brake controllers:

• U.S. Patent No. 6, 068, 352, entitled “Microprocessor-Based Control for Trailer Brakes” (the “‘352 Patent”);
• U.S. Patent No. 6, 012, 780, entitled “Brake Controller for Trailer Brakes” (the “‘780 Patent”), and
• U.S. Patent No. 6, 445, 993, entitled “Brake Control Unit” (the “‘993 Patent”).

         On July 22, 2014, Hopkins served initial invalidity contentions on Cequent that set forth Hopkins' legal theories as to how the Asserted Patents are invalid. (See July 22, 2014, Initial Invalidity Contentions, ECF #76-2.) Hopkins then filed three petitions for inter partes review with the United States Patent and Trademark Office (the “USPTO”) on January 23, 2015 (the “IPR Petitions”). (See IPRs, ECF ## 87-4, 87-5, and 87-6.) In the IPR Petitions, Hopkins argued that claims in the Asserted Patents were invalid. (See id.) On January 28, 2015, Hopkins served supplemental invalidity contentions in this action that incorporated the invalidity arguments it made in the IPR Petitions. (See Jan. 28, 2015, Supp. Invalidity Contentions, ECF #87-3.)

         After Hopkins filed the IPR Petitions, it filed a motion with this Court to stay this action until the USPTO ruled on the petitions. (See ECF #30.) The Court granted the stay on April 1, 2015. (See ECF #36.) In August 2015, the USPTO refused to institute any IPR proceedings with respect to the ‘780 and ‘352 Patents and refused to institute an IPR proceeding on nine claims related to the ‘993 Patent. (See IPR Rulings, ECF ## 37-1, 37- 2, 37-3.) Cequent thereafter moved to lift the stay (see ECF #37), and the Court granted that motion on November 13, 2015. (See ECF #40.)

         After lifting the stay, the Court entered a Stipulated Scheduling Order on February 8, 2016. (See ECF #41.) The Scheduling Order required Hopkins to serve supplemental detailed invalidity contentions, including amended theories of anticipation and obviousness under 35 U.S.C. §§ 102 and 103, by no later than February 15, 2016. (See Id. at Pg. ID 954-55.) It also required Hopkins to disclose “each item of prior art that forms the basis for any allegation of invalidity. . . .” (Id. at Pg. ID 954.) It further provided that “if a combination of items or prior art makes a claim obvious, each such combination, and the reason why a person of ordinary skill in the art would combine such items must be identified.” (Id.) Finally, the Scheduling Order obligated Hopkins to submit “[a] chart identifying where specifically in each alleged item of prior art each limitation of each asserted claim is found. . . .”[2] (Id. at Pg. ID 955.)

         The Scheduling Order also required the parties to “seasonably amend” their contentions in accordance with Rule 26(e) of the Federal Rules of Civil Procedure “upon learning that the contention is incomplete or incorrect.”[3] (Id. at Pg. ID 956.) The Scheduling Order further provided that

[t]he parties should timely conduct discovery so that these contentions can be updated as soon as possible. Any amendment to a party's infringement, invalidity, or non infringement contentions, or other pleading, that is necessary due to the Court's claim interpretation ruling, must be timely made but in no event later than one month after the Court's claim construction ruling.

(Id.)

         Hopkins complied with the Scheduling Order and timely served supplemental invalidity contentions on Cequent on February 15, 2016 (the “February 2016 Invalidity Contentions”). (See ECF #76-3.) Discovery ended on October 7, 2016. The Court then held a claim construction hearing and issued ...


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