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District Court Warns Plaintiff That If It Narrows Its Case Too Close to Trial, It Will Have Its Trial Time Reduced

During the pretrial conference, the Plaintiff Arthrex(“Arthrex”) told the district court that it may be able to narrow its case once the district court resolved certain pending motions for summary judgment. Shortly after the pretrial conference, the district court informed the parties it would deny the parties’ motions for summary judgment and that Arthrex had “raised triable issues of infringement that are sufficient overcome summary judgment.”

The district court also stated that it would deny both motions and that a detailed reason for the denials would follow in a separate order.

The district court then noted that “Arthrex is currently asserting six patents and seventeen claims against Defendants.”

At the pretrial conference, the district court explained that although Arthrex was not required to narrow its case, the district court expected that if it did decide to narrow its case it would do before the eve of trial so that the parties and the district court would not waste time preparing for non-existent claims.

In order to give some teeth to this request, the district court explained that Arthrex’ trial time would be reduced in the event it dropped claims on the eve of trial. “As the Court explained at the pretrial hearing, Arthrex is not required to narrow the case, but if attempts to do so are made more than three days after the entry of this Order, Arthrex’s trial time will be reduced by an appropriate amount. The threat of this sanction is intended to deter a party from forcing the Court and the opposing party to waste resources preparing for claims that ultimately will never be presented to the jury.”

Arthrex, Inc. v. Smith & Nephew, Inc.,
Case No. 2:15-CV-01047-RSP (E.D. Tex. Nov. 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

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