The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Defendant, Optium Corporation, filed a Motion for Partial Summary Judgment. (Doc. No. 189). Plaintiffs, Emcore Corporation and JDS Uniphase Corporation, responded thereto and in support thereof Plaintiffs offered the declaration of Dr. David A. Smith. (Doc. No. 224). Thereafter, Defendant filed a Motion to Strike the declaration of Dr. Smith. (Doc. No. 232). The briefing regarding the both Motions is complete. After careful consideration of the submissions of the parties, Defendant's Motion to Strike (Doc. No. 232) is denied, and Defendant's Motion for Summary Judgment (Doc. No. 189) is granted in part and denied in part as set forth below.
Plaintiffs, Emcore Corporation and JDS Uniphase Corporation allege, inter alia, that Defendant, Optium Corporation ("Optium"), has infringed claims of U.S. Patent Nos. 6,282,003 (the '003 patent) and 6,490.071 (the '071 patent), both titled "Method and Apparatus for Optimizing SBS*fn1 Performance in an Optical Communication System Using at Least Two Phase Modulation Tones." The '003 patent issued from Application No. 09/017,182 on August 28, 2001. The '071 patent issued from a continuation of the '812 application on December 3, 2002. The '003 and '071 patents issued to Ronald T. Logan, Jr. and Ruo Ding Li, and were assigned to JDS Uniphase Corporation.
On May 31, 2007, Special Master Gale R. Peterson conducted a Markman hearing. (Docket No. 71). On July 2, 2007, Special Mater Peterson issued a Report and Recommendation on Claims Construction. (Docket No. 76). On August 10, 2007, I adopted the same in its entirety. (Docket No. 86).
On December 10, 2007, Optium filed a Motion for Partial Summary Judgment. (Docket No. 189). Plaintiffs, Emcore Corp. and JDS Uniphase Corp., responded thereto and in support thereof Plaintiffs offered the declaration of Dr. David A. Smith. (Doc. No. 224). On January 17, 2008, Optium filed a Motion to Strike the Declaration of David A. Smith. (Docket No. 232). The issues are ripe for review.
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322.
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting, Celotex, 477 U.S. at 322. Furthermore, in antitrust litigation, "[t]o survive a motion for summary judgment, an antitrust plaintiff must produce economically plausible evidence supporting the elements of its claim." Harrison Aire, Inc. v. Aerostar Intern., Inc., 423 F.3d 374, 380 (3d Cir. 2005); citing, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). "If the plaintiff's theory is economically senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id., quoting, Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468-69 (1992).
B. DEFENDANT'S MOTION TO STRIKE
Defendant filed a Motion for Summary Judgment. (Docket No. 189). Plaintiffs filed various documents in opposition thereto including the declaration of Dr. David A. Smith. (Docket No. 224). Defendant filed a Motion to Strike said declaration. (Docket No. 232). Rule 56(e) of the Federal Rules of Civil Procedure provides as follows:
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
F.R.C.P. 56(e). Moreover "[a]n affidavit that is 'essentially conclusory' and lacking in specific facts is inadequate..." to defeat a motion for summary judgment. Mandonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985), quoting Drexel Union Prescription Centers, Inc., 582 F.2d 781, 789-90 (3d Cir. 1978). See, Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1990), cert. denied, 502 U.S. 940 (1991). "Legal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
Optium moves to strike the declaration of Dr. Smith for the following reasons:
(1) The expert opinions in Dr. Smith's declaration are not supported by his expert report and were not subject to discovery by Optium;
(2) Dr. Smith's declaration is a "supplemental expert report" submitted after the time for serving expert reports and the close of expert discovery; and
(3) Dr. Hall's supplemental expert report was struck by this Court on November 29, 2007, and the report of Dr. Smith is no different from Dr. Hall's report.
(Doc. No. 232, p. 2). In the alternative, Optium asks this court to reconsider its decision of November 29, 2007, striking Dr. Hall's report. Id. Therefore, Optium requests that I strike Dr. Smith's declaration as an ...