By Eric Schweibenz
On May 16, 2016, ALJ Thomas B. Pender issued Order No. 16 granting Complainants SawTop, LLC and SD3, LLC’s (collectively, “SawTop”) emergency motion to strike new invalidity contentions from Respondent Robert Bosch Gmbh and Robert Bosch Tool Corporation’s (collectively, “Bosch”) in Certain Table Saws Incorporating Active Injury Mitigation Technology and Components Thereof (Inv. No. 337-TA-965).

By way of background, this investigation is based on a July 16, 2015 complaint filed by SawStop, LLC and SD3, LLC alleging violation of Section 337 in the importation into the U.S. and sale of certain certain table saws incorporating active injury mitigation technology and components thereof that infringe one or more claims of U.S. Patent Nos. 7,225,712; 7,600,455; 7,610,836; 7,895,927; 8,011,279; and 8,191,450.  See our July 16, 2015 and August 28, 2015 posts for more details on the complaint and Notice of Investigation, respectively.

According to the Order, SawTop sought to strike three new invalidity contentions from Bosch’s prehearing brief on the basis that they were not presented in Bosch’s Ground Rule 7.5 disclosures and/or the original report of Bosch’s expert, Dr. Dubowsky.  SawTop noted that the new invalidity contentions were similarly struck in Order No. 14 from Dr. Dubowsky’s supplemental expert report.  Bosch did not dispute these facts, but argued that the ALJ’s supplemental order construing claim terms (Order No. 11) “changed the case and made it more complicated.”  ALJ Pender disagreed, finding that – as with Order No. 14 – Bosch “utterly fails to explain how its new written description/enablement argument sprung from [the] findings in Order No. 11 ... [and] failed to establish good cause for the inclusion of its new written description/enablement argument.”  Accordingly, SawTop’s motion was granted.