Chief Judge Stark Denies Motion to Strike Invalidity Contentions

December 19, 2017

Publication| Intellectual Property

In IBM Corp. v. Groupon, Inc., No. 16-122-LPS (D. Del. Nov. 1, 2017), Chief Judge Stark denied the plaintiff’s motion to strike certain of the defendant’s invalidity contentions, since the references were disclosed before or on the deadline for the close of fact discovery and sufficient time remained to cure any prejudice without disrupting the trial schedule. But the Court still determined that the defendant acted with “less than full diligence” (but not in bad faith), causing some prejudice to the plaintiff and meriting relief. Chief Judge Stark ordered the plaintiff to submit a proposal for relief, including the timing of any additional discovery or supplemental report.

Key Point: The Pennypack factors used in this district for ruling on motions to strike contentions (from the Third Circuit’s decision in Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977)) favor resolving cases on the merits and avoiding the “extreme sanction” of excluding evidence, if prejudice can be cured.

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