Cozy, Inc. v. Dorel Juvenile Group, Inc. (D. Mass. 21-cv-10134).

Cozy accused Dorel of infringing four Cozy patents claiming child safety seats containing airbags for use in vehicles.  Judge Dein granted Dorel’s motion to strike portions of Cozy’s expert report and the infringement charts attached to the report.  The District of Massachusetts’ Local Rule 16.6 (which is specific to patent cases) requires the parties to disclose their infringement and validity contentions towards the beginning of the litigation – the patentee’s infringement contentions are due 21 days following the initial scheduling conference, and require the patentee to identify with as much specificity as reasonably possible each accused product or process, the claims alleged to be infringed by each accused product or process, a description, on an element-by-element basis where and how each element is found on the accused product or process, and whether the infringement is literal or under the doctrine of equivalents.  Judge Dein noted that an expert’s report is confined to the contentions as served (and as amended, if such has taken place).

Judge Dein determined that one Cozy expert had exceeded the scope of Cozy’s infringement contentions.  For example, the expert had proposed constructions for claim terms that differed from those of the contentions, and then provides new theories on how the Dorel product meets these claim limitations.  To the extent that new theories were required in light of the court’s claim constructions, Judge Dein determined that the expert still cannot exceed the infringement contentions, and the party must first move to amend its contentions in light of the constructions.  She accordingly struck the report.  She did, however, provide Cozy the opportunity to submit a revised report that confined itself  to the contentions.