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Intellectual Property – Claim Construction – Motion To Strike

In this litigation involving patents-in-suit relating to electronic sourcing systems, which allow prospective buyers to locate items to buy from multiple electronic catalogs, a Richmond U.S. District Court grants plaintiff’s motion to strike new references as they relate to defendant Lawson’s V.5 and V.6 systems for building a requisition using data relating to selected matching items and their associated sources.”

A party’s failure to abide by court scheduling deadlines may result in the exclusion of testimony under Fed. R. Civ. P. 37(c). However, a court’s claim construction may provide a basis for a defendant to cite additional invalidating art when the claim construction changes the rules of the game.

On the whole, defendant Lawson has failed to carry its burden to show the court’s construction of the “means for building…” term changed the rules of the game. Significantly, Lawson cannot be taken seriously in asserting that the function construction was substantially different than the constructions proffered by the parties. Indeed, the construction of “selected matching items” was the very same agreed to by ePlus at the Markman hearing. Certainly, by the time of the hearing, Lawson was aware of such a construction, well before Lawson submitted its supplemental statement excluding the V.5 and V.6 systems.

Plaintiff’s motion is granted to the extent provided.

ePlus Inc. v. Lawson Software Inc. (Payne, J.) No. 3:09cv620, Aug. 13, 2010; USDC at Richmond, Va. VLW 010-3-424, 9 pp.

VLW 010-3-424

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