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C. Van Der Lely N.V. v. F. Lli Maschio, S.n.c.

United States District Court for the Southern District of Ohio

36 Fed. R. Serv. 2d 1489, 221 U.S.P.Q. 34 (1983)

Facts

C. Van Der Lely N.V. (Lely) (plaintiff) filed a patent-infringement lawsuit in federal court against F. Lli Maschio, S.n.c. (Maschio) (defendant). Maschio’s initial answer raised a defense of invalidity based on anticipation. However, Maschio’s later responses to interrogatories stated that Maschio would not pursue an anticipation defense. Prior to trial, Lely and Maschio agreed to a comprehensive final pretrial order that omitted anticipation and only indicated Maschio intended to argue invalidity for obviousness. A patent found invalid for anticipation would be inherently invalid for obviousness.Maschio omitted the issue of anticipation in its first and second amended answers and never moved to modify the final pretrial order. At trial, Maschio asserted in its opening statement that at least one of Lely’s patent claims was invalid for anticipation. Lely objected to Maschio’s assertion of an anticipation defense. Maschio did not explain why it failed to raise anticipation until its opening statement. The district court instructed each party to submit a brief arguing its position on whether the court should modify the final pretrial order to allow Maschio to raise the defense of anticipation.

Rule of Law

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Issue

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Holding and Reasoning (Holschuh, J.)

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