The Defendants filed a motion to strike the Plaintiff's infringement contentions, including their contentions under the doctrine of equivalents ("DOE"), for failing to comply with the Local Patent Rules ("P.R."). The Defendants argued that the Plaintiff's contentions did not comply with P.R. 3-1(d) because the Plaintiff made "impermissible blanket assertions regarding infringement under the doctrine of equivalents."
P.R. 3-1(d) states that the infringement contentions must disclose"[w]hether each element of each asserted claim is claimed to be literally present or present under the doctrine of equivalents in the Accused Instrumentality."
In its infringement contentions, the Plaintiff made blanket statements that elements not literally infringed are "infringed under the doctrine of equivalents because the difference between the claimed inventions and Defendants' infringement, if any, are insubstantial and the accused instrumentalities perform the same function in the same way to achieve the same result as such limitations."
The district court concluded that this type of blanket statement does not meet the requirement of the local patent rule. The district court stated that "[i]n light of Plaintiff's admission that its contentions relate to literal infringement, Plaintiff's current [infringement contentions] do not cover DOE claims. Plaintiff's boilerplate language also does not reserve any special right for Plaintiff to assert DOE contentions at a time of its choosing."
Nonetheless, the district court did permit the Plaintiff to amend the infringement contentions to include doctrine of equivalent contentions that would satisfy the local patent rules.
Eolas Technologies Inc. v. Amazon.com, Inc., Case No. 6:15-cv-01038 (E.D. Tex. Dec. 2016)