Greatbatch Ltd. v. AVX Corporation, et al., C.A. No 13-723 – LPS, September 22, 2015.

Stark, C. J.  Defendants’ motion to strike plaintiff’s theory of infringement is denied.  Plaintiff’s motion to strike newly disclosed prior art is denied.

Defendants move to strike plaintiff’s “Percolation Network” theory of infringement.  The theory is undeniably important to plaintiff’s case and therefore the court is reluctant to strike it.  Defendants have not shown unfair surprise or prejudice. Other Pennypack factors also weigh in Plaintiff’s favor – no evidence of bad faith or disruption of trial. Any prejudice has been or can be cured.  Plaintiff’s motion to strike newly disclosed prior art is denied. Plaintiff has not articulated unfair prejudice it may suffer, and any prejudice is outweighed by the importance of the information.  Exclusion is an extreme sanction not normally imposed absent a showing of willful deception or flagrant disregard of a court order.  Defendants met the deadline for finally identifying invalidity contentions.