EMC Corporation, et al. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, February 11, 2016.

Andrews, J. Defendant’s motion for summary judgment is granted in part and denied in part. Its motion to exclude opinions and testimony of experts is denied. Its motion to exclude evidence about attempt to swear behind a particular reference is denied.  Plaintiff’s motion for summary judgment of direct infringement of three claims is granted; its motion to file a surreply is granted.  Its motion to exclude opinions of defendant’s patent expert is granted in part and denied in part.  Its motion for partial summary judgment and to exclude testimony that non-infringing alternatives were not available is denied.  Oral argument took place on December 14, 2015, and supplemental argument on claim construction took place on January 8, 2016 followed by a decision on February 2, 2016.

The disputed technologies in the three patents-in-suit relate to data storage and transfers and deduplication. Defendant’s motion to exclude testimony of plaintiff’s infringement expert Ian Jestice regarding non-infringement of the ‘464 patent is denied since defendant’s challenges go to the weight and credibility of the opinions.  Plaintiff’s motion for summary judgment of infringement of three claims of the ‘015 patent is granted based on the court’s claim construction.  Defendant’s motion to strike untimely declarations rebutting anticipation is denied.  No bad faith was shown and defendant is not prejudiced. Plaintiff’s motion to file a sur-reply to defendant’s motion for summary judgment of invalidity is granted and defendant’s request for leave to file a sur-sur-reply is denied. Disputed facts relating to infringement of the ‘015 patent preclude summary judgment of invalidity. As for the ‘556 patent, based on the court’s most recent claim construction, certain opinions of non-infringement are excluded.  Defendant’s non-infringement and invalidity motions are denied due to factual disputes.  Defendant’s motion regarding non-infringement of the third patent-in-suit is granted. Plaintiff’s motion to strike the damages testimony of Laura Stamm relating to non-infringing alternatives is denied. The court declines to rule that the non-infringing alternatives were not available during the damages period.  Defendant’s motion to exclude testimony of plaintiff’s damages expert Brian Napper for failure to comply with Rule 702 is denied.