Steve,
You must disclose any witnesses, testimony, documents or physical evidence you will or might use at trial beforehand, if you don't disclose something by the cut-off period you will not be allowed to present it or mention it during the trial. Also, once each side discloses what they plan to use the other side can argue to have that evidence excluded or limited as to the scope of how it can be used. The judge then rules what can and can't be presented to the jury and the scope of it's use. All this happens in the months and weeks before the actual trial starts.
It did not come to our attention that all the prior art was not being used until I saw the list of patents which might be used at trial and contacted John. By then it was past the deadline to disclose and they could not be used. Also HRI successfully argued to have the scope of witness testimony severely limited and to exclude some key pieces of evidence from being admitted.
Mytee's case was effectively (and unfortunately) hobbled.
Add to that that this is a nightmare case to sit if you are a juror. A full week of boring testimony about tapers, appertures, barriers and how you define the "bottom" of a device...testimony that is difficult to follow even if you know what they are talking about beforehand. Unfortunately that is part of the risk of having a jury.
Take care,
Lisa
