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EON v. Apple: District Court Permits Plaintiff to Present Technology Tutorial Through Expert Consultant Not Previously Designated

Apple filed an objection to EON’s plan to present a technology tutorial through its expert consultant. Apple asserted that the consultant was not disclosed as an expert on whom EON intended to rely upon during claim constructions, as required by the Local Patent Rules. Apple also asserted that the disclosure, which came only two days before the tutorial, was prejudicial because Apple did not have sufficient time to learn about and/or test the consultant’s opinions and credentials.

EON opposed the objection on the ground that Apple already knew of the consultant because he was disclosed under the protective order as someone who would have access to technical information. EON also argued that the consultant did not need to be disclosed because he was not testifying in support of EON’s claim construction positions. EON also argued that it would be prejudiced if the consultant was disclosed since it would be too late for EON to use another expert or present the tutorial through its counsel.

The district court began its analysis by acknowledging that Apple “is afraid that EON will shoehorn into the tutorial expert testimony relevant to claim construction that it did not disclose.”
The district court, however, found that it was “no more likely to be misled by that than a similar presentation by counsel.”

The district court also noted that “it was not until August 9, 2016 in the late afternoon that EON’s counsel first asked court personnel whether there was a deadline to ‘give notice of an expert witness appearing at the claim construction tutorial’ and, if so, whether the deadline had already passed (indicating to me, at least, that EON had not yet determined whether Dr. Vojcic was going to give the tutorial on its behalf).”

Nonetheless, based on EON’s representations that there would be no advocacy or other arguments directly relevant to claim construction presented during the tutorial, the district court allowed “Dr. Vojcic to present the tutorial on behalf of EON. If Apple has any specific objections to Dr. Vojcic’s credentials as an expert for purposes of the tutorial, it may present them at the start of the tutorial.”

Eon Corp IP Holdings LLC v. Apple Inc
., Case No. 14-cv-05511-WHO (N.D. Cal. Aug. 12, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or