Intellectual Property Law

Chief Judge Sleet: Motion in Limine Exposes Pleading Deficiency

By Karen E. Keller, Andrew A. Lundgren et al.

Preliminary motions, a staple of modern litigation, can sometimes expose larger problems in a party's case. In a recent decision, Chief Judge Gregory M. Sleet explained how a motion in limine over an expert report raised a different question: Did the plaintiff sufficiently identify its Section 271(f) infringement argument in time for trial?

Addressing this broader issue, the Court answered no, thereby eliminating a potential avenue for recovery:

"[T]he only bases [plaintiff] Edwards has asserted for its contention that CoreValve was on notice of such claims are a single sentence in a CoreValve expert report that contains what is, at most, an oblique reference to § 271(f); a formalistic recitation in the original complaint of all possible modes of infringement under § 271 that Edwards might later assert; and an assertion made long after the close of discovery that Edwards 'reserved its rights' to assert § 271(f)."

By doing so, the Court reinforced once again the practice in this district that general statements in pleadings more often than not cause disclosure problems further down the road.

Edwards Lifesciences AG v. CoreValve Inc., C.A. No. 08-91-GMS (D. Del. Feb. 26, 2010) (Sleet, C.J.).

Full post as published by Delaware IP Law Blog on March 05, 2010 (boomark / email).