I teach, in addition to ethics and patent law, federal civil procedure. So, I enjoyed and sent to my students this case, Insite Vision Inc. v. Sandoz, Inc., (Fed. Cir. Apr. 9, 2015) (Linn-auth; Prost; Newman). The district court’s order denying the defendant’s motion to amend the final pretrial order was affirmed. Apparently, the defendant had left off of the final pretrial exhibit list a file history from counterpart EPO patents that would have assisted its obviousness defense.
Now, of course, there are plenty of reasons things are left off of exhibit lists, but I teach my students that if you leave something off the list, or a witness or depo degs off of it, the odds of it getting changed are slim to none in many instances. “Manifest injustice” is the standard, and it’s higher than “good cause” to amend a scheduling order and is further subject to an abuse of discretion standard of review.
Curious to see if there’s anything else that happens.
(Sorry for the long time between posts. Buying a house and teaching an extra IP course this semester!)