On August 8, 2012, ALJ Thomas B. Pender issued Order No. 35 granting Complainants Standard Innovation (US) Corp. and Standard Innovation Corporation’s (collectively, “SIC”) motion to strike untimely invalidity opinions and references from the Supplemental Expert Report of Sari Locker in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).
According to the Order, the parties were granted leave to supplement their expert reports on infringement and non-infringement issues raised by the Tiani 2, a new version of the Tiani product introduced by some of the respondents in the investigation. SIC argued that Dr. Locker’s supplemental expert report went beyond Tiani 2 infringement issues, however, and presented new or revised invalidity opinions and references that should be stricken. Respondents LELO Inc., LELOi AB, LELO, PHE, Inc. d/b/a Adam & Eve, Nalpac Enterprises, Ltd. d/b/a Nalpac, Ltd., E.T.C., Inc. d/b/a Eldorado Trading Company, Inc., Williams Trading Co., Inc., Honey’s Place, Inc., and Lover’s Lane & Co. (collectively, “Respondents”) countered that SIC’s experts did not limit their supplemental reports to Tiani 2 infringement issues and gave extensive opinions on claim construction and domestic industry, and that Dr. Locker’s challenged opinions are therefore proper rebuttal testimony. The Commission Investigative Staff supported the motion but disagreed with SIC that most of the challenged portions of Dr. Locker’s supplemental expert report relate to invalidity, asserting instead that the majority of the report relates to new opinions regarding SIC’s experts’ claim construction positions and thus should have been presented in Dr. Locker’s first rebuttal report. Because Respondents did not contend that the challenged opinions address infringement of the Tiani 2 and did not seek leave to otherwise supplement their expert reports, ALJ Pender granted the motion.