R-Boc Reps., Inc. v. Minemyer, No. 11 C 8433, Slip Op. (N.D. Ill. Cole, Mag. J.).

Judge Cole denied plaintiff R-Boc’s motions to amend its Final Invalidity Contentions with an allegedly new theory regarding the phrase “approximately perpendicular” based upon the Supreme Court’s Nautilus indefiniteness decision and related motion for summary judgment of invalidity based upon R-Boc’s new argument.

As an initial matter, the Court originally adopted the parties’ agreed construction of “approximately perpendicular” — “approximately 90 degrees.”  The agreed construction was initially proposed by R-Boc.  The Court noted that parties were bound by their strategy decisions in cases generally.  Furthermore, the Supreme Court’s Nautilus decision was about the phrasing of the indefiniteness test, not the meaning of words of approximation, which are common in patent claims.  R-Boc had also been stopped in two prior attempts to change its “approximately perpendicular” construction in the form of a summary judgment motion and a motion for judgment as a matter of law.

Finally, the Court also held that any prejudice to defendant could not be cured by the extensions that R-Boc offered to agree to because the case was over seven years old having been to trial and then gone to the Federal Circuit before returning to the Court.  At this point in the life of the case, any delay in getting to a final resolution would be prejudicial.