Remember Let's Make a Deal with Monty Hall? The game show where contestants had to chose their prize by picking a curtain? Remember how badly the contestants wanted to change their mind after there was a goat behind the curtain they chose - and a new car behind the one they didn't?
Well, a somewhat similar situation was presented in Script Security Solutions v . Amazon.com, 2:15cv1030, in which the defendant filed a motion for summary judgment on one of the three patents in the case, but not the other two (never happens in my cases, but different strokes ...).
Before its response was due, the plaintiff dropped that patent, and defendant responded by filing a motion for leave to file an out of time motion for summary judgment as to one of the other patents that it hadn't previously challenged. (The argument it was raising had allegedly not been set forth previously in letter briefing nor, plaintiff contended, in its invalidity contentions either, but those issues didn't end up mattering to the Court's decision).
Visiting Federal Circuit Judge William Bryson denied the motion, finding insufficient justification for the untimely motion. Judge Bryson noted that the local rules' 60-page limit for summary judgment briefing could have covered the additional motion, that his review of the proposed new motion indicated that that was the case, and that the defendant could have sought additional pages if it needed it. He also didn't fault the plaintiff for dropping the patent that the defendant had challenged.
"Significantly," he concluded, the validity of the additional patent was still in the case - it just wasn't going to be considered as a dispositive motion.