Wow, it's hard to imagine how a party could have a fact disclosure that is later than this, other than maybe trying to offer new facts for the first time on appeal.
In Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-RGA (D. Del.), the parties had a jury trial in December 2021. The jury found infringement, no invalidity, willfulness, and damages of over $12 million against two defendants. The Court later entered a (mostly undisputed) permanent injunction.
The Court addressed the defendant's § 101 claims by motion and briefing after the permanent injunction issued. The parties briefed § 101, and the Court held oral argument. It then ordered the parties to submit "submit proposed findings of fact, with citations to the record" regarding whether claimed steps were "well-understood and conventional activities at the relevant priority date." Id. at D.I. 836.
At that point, 9 months after trial, defendant submitted proposed findings of fact that attached 7 new prior art references, which were apparently not discussed during the § 101 briefing, the oral argument, or the jury trial. These were attached to show that the claim steps were conventional.
Unsurprisingly, Judge Andrews struck the seven new prior-art exhibits:
Defendants introduced this information for the first time in response to my request for “proposed findings of fact, with citations to the record, regarding whether [certain] claimed steps . . . were well-understood and conventional activities at the relevant priority date.” (D.I. 836).
This order, however, was not an invitation for Defendants to submit new evidence. It is entirely too late for Defendants to introduce new evidence to the record. . . . Therefore, Sunoco’s Motion to Strike (D.I. 843) is GRANTED.
So, yeah. Don't try to introduce new facts after oral argument on post-trial motions.
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