Bone Care Int’l, LLC v. Pentech Pharms., Inc., No. 08 C 1083, Slip Op. (N.D. Ill. Sep. 30, 2010) (Dow, J.)

Judge Dow issued an Order resolving the parties’ dispute in the pre-trial joint status report regarding the order of proofs at trial, in light of defendants’ stipulation of infringement. The Court ordered that:

  1.  Defendant would present its burden of proof evidence regarding invalidity first, citing Howard T. Markey, On Simplifying Patent Trials, 116 F.R.D. 369 (1987). 
  2. Plaintiffs will then respond to defendants’ invalidity case and present evidence of any secondary considerations. 
  3. Defendants will then be allowed to respond to the secondary consideration proofs and rebut, as appropriate, plaintiffs’ validity proofs. 
  4. Plaintiffs will be allowed a rebuttal case regarding its secondary consideration. 

The Court noted, however, that it would use its broad discretion pursuant to Fed. R. Evid. 611(a) to prevent either party from sandbagging the other with its respective rebuttal case.