Motion for Summary Judgment of Noninfringement Granted In Part, Denied in Part; Motion to Strike Expert Declaration Granted

EpicRealm, Licensing, LP and Parallel Networks LLC v. Autoflex Leasing, Inc., et al; No. 5:07-cv-125-DF; and EpicRealm, Licensing, LP and Parallel Networks LLC v. Various, Inc.; No. 5:07-cv-135-DF (consolidated)
Judge:  David Folsom
Holding:  Defendants' Motion for Summary Judgment of Noninfringement GRANTED IN PART AND DENIED IN PART;  Defendants' Motion to Strike Plaintiffs' expert's declaration, including opinions stated in the declaration, and all new evidence relied upon GRANTED.
This opinion isn't published (yet) but I thought might be of interest to readers.  Judge Folsom granted in part, and denied in part, the defendants' renewed motion for summary judgment of noninfringement with respect to the Plaintiffs' four theories on how the "releasing" limitation is satisfied in the accused systems at issue in the suit.  In their response, Plaintiffs withdrew three of their four "releasing" theories from presentation at trial and therefore, Judge Folsom granted summary judgment in favor of defendants on those three theories.  With regard to Plaintiff's remaining "releasing" theory, Judge Folsom found that a "reasonable version of material fact upon which the nonmovant could prevail" existed and therefore denied summary judgment in Plaintiffs' favor as to their one remaining "releasing" theory. 
In their reply brief, Defendants incorporated their motion to strike the supplemental declaration of Plaintiffs' expert (which was supplemented by Plaintiffs only four days before jury selection and seven days before trial was set to begin).  With regard to Defendants' motion to strike, the Court found that: 1) Plaintiffs had failed to adequately explain the late supplementation of their expert report; 2) allowing Plaintiffs' expert testimony would prejudice Defendants; 3) there was no possibility of curing the prejudice by continuance since Plaintiffs continually opposed a continuance at both the preliminary pretrial conference and the final pretrial conference; and, 4) the importance to Plaintiffs' case of their experts testimony regarding the source code he analyzed was outweighed by the other three factors cited above.  Therefore, Judge Folsom granted Defendants' motion to strike and the expert's supplemental declaration and the new evidence on which he based his opinions were excluded from consideration.