Judge Sorokin denied Ethicon 2019s motion to strike portions of the trial testimony of Covidien 2019s technical expert that three prior art references did not render the asserted 2018310 patent invalid. While the expert offered arguments that had not previously been disclosed, Judge Sorokin noted that Covidien 2019s expert had been deposed prior to Ethicon 2019s, and that Covidien 2019s expert had therefore not had the opportunity to rebut the theories put forth by Ethicon 2019s 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.
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