At least one circuit, however, has determined that a party cannot create an
issue of fact by amending his deposition under Rule 30(e). See Hambleton Bros.
Lumber Co. v. Balkin Enters., Inc., 397, F.3d 1217, 1225-26 (9th Cir. 2005) (“While the
language of FRCP 30(e) permits corrections ‘in form or substance,’ this permission
does not properly include changes offered solely to create a material factual dispute in a
tactical attempt to evade an unfavorable summary judgment.”).
As the Eleventh Circuit
has explained, “[w]hen a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.” McCormick, 333 F.3d at 1240 n.7
(quoting Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984))
(emphasis in McCormick and alterations added). Rather, that affidavit would be a
On personal knowledge:
FRCP 56(e) and the Eleventh Circuit require that affidavits in support of or in
opposition to summary judgment must be made with personal knowledge in order to
create a genuine issue of material fact. See Pace v. Capobianco, 283 F.3d 1275, 1278
(11th Cir. 2002). Here, there is no dispute that Muthiah started working after the
commercial sales took place—whether those sales occurred in either 1994 or 1995—
and therefore lacked personal knowledge as to the timing of these events.
What you say during oral argument can be held against you:
At oral argument on appeal, when questioned about whether Shaw waived this
argument, counsel’s response was that the argument was “subtly” raised at oral
argument before the district court even though it was not the subject of any heading in
its brief, and he did not believe the words “ready for patenting” were used. Oral
Argument 6:47-7:24, http://oralarguments.cafc.uscourts.gov/mp3/2009-1357.mp3. We
conclude that Shaw failed to contest whether the invention was ready for patenting
below and that argument is therefore waived.
***Also In re Arora
It is well-settled, however, that a prior art reference must be considered for all that it teaches to those of
ordinary skill in the art, not just the embodiments disclosed therein. See In re Inland
Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001); In re Fritch, 972 F.2d 1260, 1264 (Fed.