Court Sinks Two Moms and a Toy's Attempt to Modify Expert Schedule in Patent Battle over Bath Toy

January 27, 2012

Plaintiff, Two Moms and a Toy, filed an emergency motion to stay the expert phase of their case pending the court's ruling on claim construction. The plaintiff's motion was based on the argument that "expert reports and expert discovery in a patent infringement case is extremely expensive and that a ruling on claim construction could end this case and at the very least will provide the parties with needed guidance and information for assessing the patent's strength which will hopefully result in a settlement of the case."

The court was not persuaded by the plaintiff's argument. Indeed, it agreed with the defendant that it was "thinly veiled request for reconsideration of my two previous ruling denying motions to extend or otherwise modify the case schedule." The court noted that these argument could have, and should have been, raised in connection with the earlier requests to amend the schedule that were denied by the court. "All of the arguments about expense and efficiency could have been made in connection with the parties' previous Joint Motion to Amend Scheduling Order."

The court also noted that the technology at issue was not complex and that the invention was not technically sophisticated. The court also found that the plaintiff's request failed to identify the claims that needed to be construed and how the construction of those claim would materially impact expert discovery and cost. "In addition, the patent-in-suit concerns a bath toy; the invention is not technically sophisticated; and the plaintiff had failed to identify the claims that must be construed and why construction of claims in this straight-forward invention would materially impact expert preparation and discovery."

The district court also found it significant that the case was filed 15 months earlier and that it had many delays, which the court attributed to the litigation tactics of the plaintiff. "This is an old case, having been filed approximately 15 months ago. It has been marred by delays, many caused by the litigation tactics of the plaintiff."

Accordingly, the court denied the emergency motion and found that "[s]ufficient time has been allowed for the preparation of the case."

Two Moms and a Toy, LLC v. International Playthings, LLC, Case No. 10-cv-02271-PAB-BNB (D. Col. Jan. 17, 2012)

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