Judge Sorokin denied Ethicon’s motion to strike portions of the trial testimony of Covidien’s technical expert that three prior art references did not render the asserted ‘310 patent invalid. While the expert offered arguments that had not previously been disclosed, Judge Sorokin noted that Covidien’s expert had been deposed prior to Ethicon’s, and that Covidien’s expert had therefore not had the opportunity to rebut the theories put forth by Ethicon’s expert, at least some of which came forth in deposition but were not present in the expert report. Noting that Ethicon had not alleged prejudice, the testimony was allowed to stand.
