It's easy to think that, once an opposing party takes a position on the record as to a legal issue, it can never change that position. Not so.
Today Judge Andrews addressed an argument that defendants who lost at trial were nonetheless bound by their "judicial admissions," thus preventing them from taking a (purportedly) contradictory position after trial. Not surprisingly, the defendants disagreed:
Plaintiff argues that Defendants made representations before and at trial that directly contradict positions that Defendants must take in order to prove an interference-in-fact. . . . Plaintiff notes that Defendants' representations were "judicial admissions." . . . . Therefore, Plaintiff argues, Defendants cannot establish an interference-in-fact between the '537 patent and the '207 patent, and I must dismiss the counterclaim against the '537 patent as moot for lack of subject matter jurisdiction.
Defendants respond that Plaintiff does not invoke estoppel—or any other legal theory—that would support dismissing their claims. . . . Defendants add that, in any case, they are not estopped from abandoning their trial positions, nor from invoking theories that Plaintiff presented at trial, because Plaintiff prevailed over them at trial.
The Court found the the defendants were free to change the position, given that they had not prevailed at trial:
I agree with Defendants that Plaintiff does not provide a legal theory that supports dismissing Defendants' claim against the '537 patent as moot. Defendants, having lost at trial, are certainly not bound by their arguments. Moreover, the contradictory representations Plaintiff points to generally concern the specification of the '207 patent, the "design philosophy" behind it, and its preferred embodiment. . . . An interference inquiry, however, looks to the claims of the '207 patent. . . . It still seems possible for Defendants to prove an interference-in-fact, and, consequently, it would be premature to dismiss the interference counterclaim as moot.
Of course, the opinion says nothing about the credibility problem with taking opposing positions before the Court. But a party having a credibility problem because it reversed its position is a far cry from being precluded from reversing its position at all.
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