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Motion for Partial Summary Judgment on Indefiniteness Granted; Motion to Strike Expert Declaration Denied (but with a caveat)

By Michael C. Smith

Michael S. Sutton Ltd. v. Nokia Corp., --- F.Supp.2d ----, 2009 WL 2460994 (E.D.Tex. Aug 10, 2009) (NO. 6:07CV203)
Judge: Leonard Davis
Holding: Defendant's Motion for Partial Summary Judgment on the issues of indefiniteness, enablement, and utility GRANTED; Motion to Strike expert declaration DENIED
This is a claims construction opinion which also addressed the defendant's motions for partial summary judgment on the issues of indefiniteness, enablement, and utility as to one of the asserted claims, as well as a motion to strike a declaration by the plaintiff's expert.  In the course of construing the claims Judge Davis granted the requested summary judgment as to claim 3 of the asserted patent, but denied the motion to strike the expert's declaration.
With respect to the latter ruling, the Court's analysis was contained in an informative little nugget of a footnote.  In it, Judge Davis stated that the motion to strike provided "no legal basis" for striking an expert declaration attached to a claim construction brief. "However," he continued, "in fully considering Dr. Myler's declaration, the Court was ever mindful that conclusory and unsupported assertions are unhelpful and given very little weight when compared with the intrinsic record. See Phillips, 415 F.3d at 1317."  You ever notice judges don't seem to care much for "conclusory and unsupported" stuff?

Full post as published by Eastern District of Texas Federal Court Practice on August 28, 2009 (boomark / email).