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Choon's Design Inc. v. Tristar Products, Inc.

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

May 3, 2018

CHOON'S DESIGN INC., Plaintiff,
v.
TRISTAR PRODUCTS, INC., Defendant.

          ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SUPPLEMENTAL CONTENTIONS [Doc. 171]; AND (2) SETTING DATES

          Victoria A. Roberts United States District Judge

         I. INTRODUCTION

         Plaintiff Choon's Design Inc. (“Choon's”) moves to strike Defendant Tristar Products, Inc.'s (“Tristar”) supplemental invalidity contentions, which disclose new prior art references. The motion is fully briefed.

         As set forth below, the Court GRANTS IN PART and DENIES IN PART Choon's motion to strike.

         II. BACKGROUND

         Choon's filed this case in February 2014. The Court entered a claim construction order on April 21, 2016. Subsequently, the Court entered a scheduling order setting a December 2016 deadline for completion of fact discovery, a dispositive motion cutoff date in March 2017, and a trial start date of December 5, 2017.

         The Court ruled on the parties' motions for summary judgment on August 10 and August 15, 2017. On August 17, less than three weeks before the deadline to file Daubert motions, Tristar sent a letter requesting the Court to amend the schedule and hold a second Markman hearing on claim terms not construed previously. After holding an unsuccessful settlement conference on September 8, 2017, the parties submitted proposed amended schedules in advance of a September 26th status/ scheduling conference. The Court granted Tristar's request for a second Markman hearing.

         On October 3, 2017, the Court entered a Second Amended Scheduling Order, which set the following as Step 11: “Tristar makes Final Invalidity and Unenforceability Contentions (supplementation limited to issues affected by earlier summary judgment decisions).” That language was adopted from Choon's proposed schedule. The Court never discussed the meaning of “affected by” with the parties.

         The Court entered a second claim construction order on January 30, 2018. Tristar then made supplemental invalidity and unenforceability contentions that raise many new prior art references.

         Tristar's supplemental contentions include more than twice the number of prior art references for the ‘565 and ‘420 patents than its original contentions. While the precise number is not clear from briefs, Tristar originally relied on approximately seven prior art references for the ‘565 patent and five references for the ‘420 patent. Tristar's supplemental contentions raise approximately 11 new references for the ‘565 patent and six new references for the ‘420 patent.

         Choon's moves to strike the new prior art references; it says Tristar should have raised them sooner.

         Tristar says the new references are appropriate because they relate to issues affected by either the summary judgment rulings or the second claim construction.

         Despite Tristar's position that the second claim construction and summary judgment rulings affected its invalidity positions/defenses so significantly that it was justified to more than double prior art references, Tristar kept all but one of its original prior art references. Viewing these facts generally, the Court finds Tristar's decision to more than double its prior art references four years after the case was filed and long after discovery closed (on all issues other than expert discovery on damages) problematic. If the second claim construction and summary judgment rulings had affected Tristar's invalidity contentions significantly, it would have dropped more than one of its original contentions. The Court did not intend, much less consider, that the Second Amended Scheduling Order provide Tristar the opportunity to broaden its contentions so liberally.

         Nevertheless, the Court reviewed Tristar's new prior art references to determine whether they should be stricken.

         III. DISCUSSION

         A. Meaning of “affected by” in Second ...


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