HSM Portfolio LLC, et al. v. Elpida Memory Inc., et al.C.A. No. 11-770 – RGA, February 11, 2016.

Andrews, J. Three motions to strike and one motion to preclude untimely evidence from trial are granted in part, denied in part, and dismissed as moot in part.

The court has ruled in plaintiffs’ favor for each issue implicated in plaintiffs’ motion to strike untimely evidence cited in summary judgment briefing, and defendant has withdrawn a prior art reference challenged as untimely; therefore this motion based on these untimeliness arguments is denied as moot. However, the part of the motion addressing certain “untimely” prior art references found in background material already known to plaintiffs before the service of expert reports is denied due to lack of prejudice. A request to exclude another prior art reference and certain prior art corroboration evidence is similarly denied due in part to plaintiff’s dilatory interrogatory responses.  Defendant’s motion to strike a new infringement theory raised in the expert Dr. Foty’s reply expert report is granted. Defendant’s motion to strike DOE evidence is denied since plaintiffs’ expert had opined on DOE in his report, and the only new theories advanced in rebuttal related to defendants’ arguments precluding the application of DOE and a recitation of the function-way-result test.