Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE PORTIONS OF SUPPORTING FACTUAL STATEMENTS BENNETT, Chief Judge. TABLE OF CONTENTS I.INTRODUCTION.........................................................1037 A. Procedural Background ..............................................1037 1. Maytag’s lawsuit and Electrolux’s response.........................1037 2. Discovery and claim construction..................................1038 3. The summary judgment motions...................................1039 B. Factual Background..................................................1040 1. Prosecution and objectives of the patents-in-suit....................1040 2. The patents in suit................................................1042 a. The '909 patent...............................................1042 b. The '809 patent...............................................1044 3. Claim construction ...............................................1048 4. Electrolux’s accused devices and processes..........................1050 a. The non-infringing '105 patent and the Old Horizon basket.......1050 b. The accused H + basket.......................................1052 c. The accused New Horizon basket...............................1055 II. LEGAL ANALYSIS.......................................................1059 A. Standards For Summary Judgment....................................1059 B. What Record Can The Court Consider?.................................1060 1. The motions to strike or supplement ...............................1060 2. Analysis .........................................................1062 a. What circuit’s law applies .....................................1062 b. The admissible evidence requirement...........................1062 c. “Unsworn” expert reports.....................................1063 d. Summary.....................................................1065 C. The Motions For Summary Judgment..................................1065 1. “Validity” issues .................................................1065 a. Inadequate written description.................................1065 i. Arguments of the parties..................................1065 ii. Applicable law...........................................1067 iii. Application of the law....................................1069 b. Lack of enablement...........................................1078 i. Arguments of the parties..................................1078 ii. Applicable law...........................................1079 iii. Application of the law....................................1080 2. Other issues......................................................1083 III. CONCLUSION...........................................................1084 This patent infringement action, which involves patents for plastic washing machine baskets and the process for making them, comes before the court on the parties’ motions for summary judgment and the parties’ related motions to strike portions of each other’s statements of fact in support of their motions for or resistances to summary judgment. The motions for summary judgment encompass both validity and infringement issues, as well as the defendant’s contention that any infringement of valid patents was not willful as a matter of law. The motions presently before the court are every bit as hotly contested as the construction of various claim terms was for purposes of the “Markman hearing” which required a lengthy and detailed ruling, and the issues now before the court are more numerous and at least as complex. In the circumstances now presented, however, the court finds that two of the many issues raised by the parties are ultimately dispositive. I. INTRODUCTION A. Procedural Background 1. Maytag’s lawsuit and Electrolux’s response Plaintiff Maytag Corporation (Maytag), a Delaware Corporation with its principal place of business in Newton, Iowa, filed this patent infringement action on July 23, 2004, against defendant Electrolux Home Products, Inc., doing business as Frigidaire (Electrolux), a Delaware corporation licensed to do business and doing business in Iowa and elsewhere, with its principal place of business in Cleveland, Ohio, but with manufacturing facilities in this District. Maytag alleges in its Complaint (docket no. 2) that Electrolux is willfully infringing two patents assigned to Maytag: U.S. Patent No. 5,881,909 (the '909 patent), entitled “PLASTIC WASHING MACHINE BASKET,” and U.S. Patent No. 5,980,809 (the '809 patent), entitled “METHOD FOR MOLDING A PLASTIC WASHING MACHINE BASKET.” Maytag seeks judgments of infringement and willful infringement of both patents, preliminary and permanent injunctive relief from such infringement, treble damages with both pre- and post-judgment interest, and attorneys’ fees. Electrolux answered Maytag’s Complaint on October 25, 2004 (docket no. 10), denying Maytag’s infringement claims and asserting several affirmative defenses, including invalidity of the patents-in-suit, as well as counterclaims for declaratory judgments of non-infringement and invalidity of the patents. Maytag replied to Electrolux’s counterclaims on November 16, 2004 (docket no. 18), denying those counterclaims. 2. Discovery and claim construction A Scheduling Order, Discovery Plan, And Order on Miscellaneous Pretrial Matters (docket no. 17) and a separate Order Setting Trial, Final Pretrial Conference And Requirements For Final Pretrial Order (docket no. 20) were filed on November 9, 2004, and November 30, 2004, respectively. Pursuant to the Scheduling Order, a Markman hearing was originally scheduled for June 3, 2005, with interim deadlines for the filing of charts identifying the patent claims that the plaintiff alleges are infringed; the defendant’s admissions concerning characteristics identified by the plaintiff that are present in the accused device and identification of those that the defendant contends are not present; identification of extrinsic evidence supporting each party’s claim constructions; a joint claim construction statement; and briefing of claim construction issues. Discovery disputes, disputes concerning which claim terms the parties were required to define, and other events required the rescheduling of the pertinent deadlines and the Markman hearing itself, first to July 29, 2005, then to September 29, 2005, then to October 28, 2005, and ultimately to December 5, 2005. On November 28, 2005, the court sent to the parties a 106-page tentative pre-argument draft of its ruling on the issues presented in the parties’ briefs for the Mark-man hearing, so that the parties could focus their oral arguments and, still more specifically, address where, in each party’s view, the court had gone wrong in its analysis of pertinent issues and its construction of claim terms. The court held the Markman hearing as scheduled on December 5, 2005. The hearing involved argument of counsel and some demonstrative video and slide presentations, but no live witnesses or presentation of other evidence. At the oral arguments, the parties agreed that the opportunity to review the court’s draft ruling had focused their arguments, and the oral arguments themselves demonstrated that the issues had been substantially narrowed by the court’s pre-argument disclosure of its proposed resolution of pertinent issues and its proposed claim constructions. Indeed, the court found this process of disclosing a tentative draft to the parties prior to the Markman hearing to be invaluable in resolving the disputed issues in claim construction. The court entered its Memorandum Opinion And Order Regarding Construction Of Disputed Patent Claim Terms (docket no. 119) on January 19, 2006. The court amended that Memorandum Opinion, nunc pro tunc, on January 24, 2006 (docket no. 122), to add constructions of two claim terms that had been addressed in the court’s ruling, but inadvertently left out of the chart summarizing the court’s claim constructions. The amended decision is published at Maytag Corp. v. Electrolux Home Prods., Inc., 411 F.Supp.2d 1008 (N.D.Iowa 2006). 3. The summary judgment motions The next significant procedural milestone in this case came in April 2006 when the deadline for the filing of summary judgment motions set forth in the Scheduling Order arrived. Electrolux filed the first such motion, its April 28, 2006, Motion For Summary Judgment (docket no. 139), which raises issues of invalidity and non-infringement of the patents-in-suit as well as Electrolux’s contention that any infringement or potential infringement of which it may be guilty was not “willful” as a matter of law. Just over two hours later, Maytag filed its own summary judgment motion, its April 28, 2006, Motion For Partial Summary Judgment Of Infringement Of Claims 24 & 25 Of U.S. Patent No. 5,881,909 (docket no. 144). The parties filed extensive briefing of these motions, which the opposing parties resisted and in further support of which the movants filed replies. In addition to the summary judgment motions, the parties both filed motions to strike portions of their opposing party’s statements of fact and one motion to supplement the record. More specifically, on May 26, 2006, Maytag filed its Motion To Strike Certain Paragraphs Of Electrolux Home Products, Inc.’s [sic] Corrected Statement of Undisputed Material Facts (docket no. 157); on June 9, 2006, Maytag filed its Motion To Strike Certain Paragraphs Of Electrolux Home Products, Inc.’s [sic] Purported Statement Of Material Facts That Preclude Summary Judgment Of Infringement Of Claims 24 And 25 Of U.S. Patent 5,881,909 (docket no. 161); on June 30, 2006, Electrolux filed its Motion To Strike Certain Paragraphs From Maytag’s Purported Statements Of Fact (docket no. 176); on August 7, 2006, Maytag filed its Motion To Strike Electro-lux Home Products, Inc.’s [sic] Amended Response To Maytag’s Statement Of Undisputed Material Of [sic] Fact No. 48 (docket no. 201); and On August 16, 2006, Electrolux also filed its Motion For Leave To File The Third Supplemental Appendix In Support Of [Its] Motion For Summary Judgment (docket no. 205). By order dated July 17, 2006 (docket no. 184), the court set oral arguments on the motions then pending for August 31, 2006. By order dated August 25, 2006 (docket no. 208), the court advised the parties that, in preparation for the oral arguments, the court had come to the tentative, albeit reasonably firm, conclusion that genuine issues of material fact preclude summary judgment on any of the “infringement” or “willful infringement” issues raised by the parties and on the “invalidity” issues of “anticipation,” “obviousness,” and the “on-sale bar.” On the other hand, the court explained that it had considerable doubt that the patents-in-suit are valid, in light of Electrolux’s assertions that the patents fail the “written description” requirement of 35 U.S.C. § 112 and that Claims 26 and 27 of the '909 patent fail the “enablement” requirement of 35 U.S.C. § 112. Therefore, the court advised the parties that it wished them to focus their oral arguments on their motions for summary judgment on the “invalidity” issues of whether or not the patents-in-suit satisfy the “written description” and “enablement” requirements of 35 U.S.C. § 112. Just as the court had provided the parties with a tentative draft of its ruling on claim construction issues shortly before the Markman hearing, on August 28, 2006, the court provided the parties with a 75-page tentative draft of this ruling, so that the parties could further focus their oral arguments on where the court had gone wrong or had got it right in its analysis of the issues presented on summary judgment. At the oral arguments, plaintiff Maytag was represented by Edmund J. Sease, who presented Maytag’s oral arguments, and Jeffrey D. Harty, R. Scott Johnson, and Kurt Von Thomme of McKee, Voorhees & Sease, P.L.C., in Des Moines, Iowa. Also present for Maytag were Kirk Goodwin, a representative of Maytag, and John Colli-gan, a representative of Whirlpool, which recently purchased or merged with Maytag. Defendant Electrolux was represented by Frank G. Smith, who presented Electrolux’s oral arguments, as well as David M. Maxwell, John Haynes, Cherri Gregg, and Garret Matter of Alston & Bird, L.L.P., in Atlanta, Georgia, and by Richard J. Sapp of Nyemaster, Goode, West, Hansell & O’Brien, P.C., in Des Moines, Iowa. George Hawranko, in-house counsel for Electrolux, was also present. Trial is currently scheduled to begin on October 23, 2006. Therefore, the court has worked expeditiously, but not hastily, to provide the parties with this ruling as much in advance of the scheduled trial date as possible. B. Factual Background The pertinent factual background here includes not only the pertinent patents, or at least the pertinent claims of those patents that are allegedly infringed by Elec-trolux’s accused devices and processes, but a reiteration of the court’s construction of disputed terms and an overview of Elec-trolux’s accused devices and processes. Owing to the court’s disposition of the pending motions, however, the court has not found it necessary to include a detailed examination of the purported “prior art” or the history of the development of Maytag’s purported inventions and the prosecution of its patents, because such information was only relevant to portions of Electrolux’s challenges to the validity or the scope of Maytag’s patents-in-suit that the court finds it unnecessary to reach. 1. Prosecution and objectives of the patents-in-suit The patents-in-suit are patents for a plastic washing machine basket and the process for making that basket. The first patent-in-suit, the “product” patent, is U.S. Patent No. 5,881,909 (the '909 patent), entitled “PLASTIC WASHING MACHINE BASKET,” which is included in Electro-lux’s Appendix of Evidence In Support Of Electrolux Home Products, Inc.’s [sic] Motion For Summary Judgment (Electrolux’s Appendix) (docket no. 140N5) at Vol. I, 1-11 (hereinafter the '909 patent). The second patent-in-suit, the “process” patent, is U.S. Patent No. 5,980,809 (the '809 patent), entitled “METHOD FOR MOLDING A PLASTIC WASHING MACHINE BASKET,” which is included in Electro-lux’s Appendix at Vol. I, 12-21 (hereinafter the '809 patent). Both patents stem from a single original patent application, application number 11,893, filed February 1, 1993. However, the Examiner required “division” of the original patent application into separate patent applications. Therefore, the patentee filed application number 08/324,781, for the “process” patent on October 14, 1994, as a “division” of application 11,893. The '909 “product” patent issued on March 16, 1999, and the '809 “process” patent issued on November 9, 1999. Both patents identify the inventors as Jack L. Craine, P. Randell Gray, and Melvin D. Colclasure, and Maytag as the as-signee. Moreover, because the '809 patent is a “division” of the application for the '909 patent, the Abstract, Background Of The Invention, and Summary Of The Invention in the '809 patent, including the objects of the patent, are identical to comparable portions of the '909 patent. Compare the '909 patent (Abstract, Background Of The Invention, Summary Of The Invention), with the '809 patent (Abstract, Background Of The Invention, Summary Of The Invention). Thus, the Abstract for both patents discloses a “method and apparatus” invention, as follows: A method and apparatus for molding a plastic washing machine basket includes a fixed mold core formed with teardrop-shaped projections spaced about a periphery thereof, cavity sidewall members spaced about the periphery of the mold core which carry core pins having tips adapted to abut teardrop-shaped projections on the mold core and a cavity cover member spaced about an end of the mold core and abutting the cavity sidewall members so as to define a cavity between the mold core and both the cavity cover member and the sidewall members. After injecting a plastic material to flow about the tips of the core pins and the projections so as to fill the cavity and form a plastic washing machine basket having an annular sidewall extending from a peripheral portion of a base wall with spaced apertures extending through the sidewall and teardrop-shaped grooves in an inner surface thereof extending from the apertures, the plastic washing machine basket can be ejected from the molding apparatus by separating the mold core and the cavity cover member and shifting the cavity sidewall members away from the mold core at a predetermined angle such that the core pins force the plastic washing machine basket to be removed from the mold core due to engagement of the core pins in the apertures of the basket. The '909 patent (Abstract); the '809 patent (Abstract). The Background Of The Invention for both patents explains that “there exists a need in the art for a method and apparatus for molding a plastic washing machine basket with holes in the base wall and annular sidewall thereof, without forming undesirable knit lines, in a single manufacturing step.” Id., col. 1, ll. 33-37; the '809 patent, col. 1, ll. 38-42. The Background identifies the following problems with the prior art: (1) the costly and time-consuming multi-step manufacturing process for metal washing machine baskets, which required shaping the metal basket and perforating the holes in separate steps; and (2) unsuccessful attempts to mold plastic washing machine baskets, which involved either a single-step process for shaping the basket and perforating the holes, but resulted in numerous knit lines that reduced structural integrity and visually indicated defects, or separate molding and perforating steps, which left burrs and sharp edges that could result in damage to garments washed in the basket. Id., col. 1, ll. 10-32; the '809 patent, col. 1, ll. 15-37. Consequently, the invention in both patents had two stated objects: (1) “to provide a plastic washing machine basket which can be molded in a single manufacturing step with holes formed in both a base wall and an annular sidewall of the basket without undesirable knit lines on the inner surface of the basket”; and (2) “to provide a method and an apparatus for molding a plastic washing machine basket without knit lines on the inner surface thereof while forming the basket with spaced holes in both a base wall and an annular sidewall thereof.” Id. (Summary Of The Invention), col. 1, ll. 41-50; the '809 patent (Summary Of The Invention), col. 1, ll. 46-55. The Summary Of The Invention explains how these objects are accomplished by the patented invention. However, from this point on, different parts of the Summary Of The Invention and the Detailed Description Of The Invention become pertinent to each patent, even where those parts of the patents are identical. 2. The patents in suit a. The '909 patent Because the focus of the '909 patent is the plastic washing machine basket, rather than the apparatus for molding such a plastic washing machine basket, the pertinent part of the Summary Of The Invention, for present purposes, is the “product” part, which states the following: [The apparatus will] form a plastic washing machine basket having an annular sidewall extending upward from a peripheral portion of a base wall wherein the sidewall will have inner and outer surfaces with spaced apertures extending there through and teardrop-shaped grooves extending from the apertures. Id. Figures 1 and 2 of the '909 patent, reproduced below, show the plastic washing machine basket in question: The pertinent part of the Detailed Description Of The Invention in the '909 patent, that is, the part describing the plastic washing machine basket rather than the apparatus for producing such a basket, states the following: The plastic washing machine basket 2 of the invention will be explained with reference to FIGS. 1 and 2. Basket 2 includes a base wall 5 and an annular sidewall 8 extending from a peripheral portion 10 of base wall 5.... .... Base wall 5 is also formed with a plurality of drain holes 34 which extend through inner and outer surfaces 16, 19 of base wall 5. As previously stated, annular sidewall 8 extends from peripheral portion 10 of base wall 5 to a terminal edge 36. Sidewall 8 is defined by an outside surface 38 and an inside surface 41 through which a plurality of apertures 44 extend. Apertures 44 are spaced along the length of sidewall 8 in alternating rows, as generally depicted in both FIGS. 1 and 2. For the sake of clarity in these figures, apertures 44 have not been shown to extend entirely around the circumference of sidewall 8. However, in the preferred embodiment, apertures 44 are provided around the entire circumference of sidewall 8 and are slightly and progressively reduced in diameter from adjacent base wall 5 toward terminal edge 36. At outside surface 38, apertures 44 are beveled at 47. In addition, inside surface 41 of sidewall 8 is formed with teardrop-shaped grooves 50 which extend about apertures 44. Teardrop-shaped grooves 50 generally taper along their length, in both width and depth, from base wall 5 toward terminal edge 36 such that apertures 44 are located in substantially the widest and deepest portions of teardrop-shaped grooves 50. Finally, terminal edge 36 of sidewall 8 is provided with an outer annular notch 52 for the reasons which will be more fully discussed below. The '909 patent (Detailed Description Of The Invention), col. 2, l. 43, to col. 3, l. 26. The '909 patent states twenty-nine claims. However, Maytag has clarified that it is alleging that Electrolux’s accused devices infringe only Claims 23, 24, 25, and 27. Electrolux asserts that Claim 26 is in dispute for purposes of its counterclaims. Therefore, the court will only quote here Claims 23 through 27 of the '909 patent. Those claims state the following: 23. A plastic washing machine basket comprising: a substantially circular base wall having a peripheral portion; and an annular plastic sidewall extending upward from the peripheral portion of said base wall to a terminal edge, said sidewall having inner and outer surfaces, grooves formed in said inner surface of said sidewall, a plurality of spaced apertures extending through said sidewall, said apertures located within said grooves. 24. The plastic washing machine basket of claim 23, wherein the outer surface of said sidewall is beveled about said apertures. 25. A plastic washing machine basket comprising: a base wall having a peripheral portion, said base wall being formed of plastic; and an annular sidewall extending upward from the peripheral portion of the base wall and diverging radially outwardly to an upper terminal edge, said sidewall including inner and outer surfaces having spaced apertures extending there through with the outer surface being beveled at the apertures, said sidewall being made of plastic and integrally formed with both the base and the apertures such that the basket has a smooth, uniform construction. 26. The plastic washing machine basket of claim 25, wherein the basket lacks knit lines on the inner surface. 27. The plastic washing machine basket of claim 25, wherein the basket lacks burrs at the apertures. The '909 patent, col. 10, ll. 4-32. b. The '809 patent The focus of the '809 patent is the process for manufacturing a plastic washing machine basket, rather than the plastic washing machine basket itself. Therefore, the pertinent part of the Summary Of The Invention is the “process” part, which states the following: These [identified objects of the invention] and other objects of the present invention are accomplished by providing a molding apparatus comprising a mold core which is fixed at one end and includes teardrop-shaped projections spaced about an outer periphery thereof, a plurality of cavity sidewall members being movable between an open mold position, in which the cavity sidewall members have been shifted at a predetermined angle away from the mold core, and a closed mold position, in which the cavity sidewall members extend about the outer periphery of the mold core with a first predetermined space there between, and a cavity cover member extending about the second end of the mold core with a second predetermined space there between and abutting the cavity sidewall members when in a closed mold position but being spaced from the cavity sidewall members when in an open mold position. The cavity sidewall members carry core pins having terminal ends which project toward and abut the teardrop-shaped projections of the mold core when the cavity sidewall members are in the closed mold position. By this arrangement, when a plastic material is injected into the first and second predetermined spaces, the plastic material will flow about the core pins and the projections so as to form a plastic washing machine basket having an annular sidewall extending upward from a peripheral portion of a base wall wherein the sidewall will have inner and outer surfaces with spaced apertures extending there through and teardrop-shaped grooves extending from the apertures. After cooling of the plastic material, the various core pins are used to remove the molded plastic washing machine basket from the mold core during an ejection process by shifting the basket relative to the mold core through the interengagement of the core pins with the apertures formed in the sidewall of the basket. A stripper ring and an ejection system, are also provided to aid in removing the molded basket from the mold core. The '809 patent, col. 1, l. 56, to col. 2, l. 23. Figures 3 and 4 of the '809 patent, reproduced below, show the molding apparatus in question, in closed mold position (Fig.3) and open mold position (Fig.4): The pertinent part of the Detailed Description Of The Invention in the '809 patent, that is, the part describing the apparatus for producing a plastic washing machine basket rather than the plastic washing machine basket itself, states the following: The '809 patent states thirty-five claims. However, Maytag has clarified that it is alleging that Electrolux’s accused devices infringe only Claims 7, 8, and 9. The court will, therefore, quote only those claims. Those claims state the following: 7. A method of making an integral, smooth and uniformly constructed plastic washing machine basket having a base wall including a peripheral portion from which extends an annular sidewall that diverges radially outwardly to a terminal edge in an apparatus including a mold core, cavity sidewall members spaced about the mold core which carry core pins each having a beveled tip portion adapted to abut the mold core during a molding operation and a cavity cover member spaced about an end of the mold core and abutting the cavity sidewall members so as to define a cavity between the mold core and both the cavity cover member and the cavity sidewall members comprising: injecting a plastic material to fill the cavity while flowing around the beveled tip portion of each of the core pins to form a plastic washing machine basket having sidewalls provided with a plurality of spaced beveled apertures; and ejecting the washing machine basket from the apparatus by separating the mold core and cavity cover member and shifting the cavity sidewall members away from the mold core. 8. The method of claim 7, further comprising: utilizing the core pins to aid in ejecting the plastic washing machine basket from the apparatus with the core pins forcing the plastic washing machine basket to shift relative to the mold core as the cavity sidewall members are shifted away from the mold core due to the engagement of the core pins in the beveled apertures of the plastic washing machine basket. 9. The method of claim 8, further comprising: aiding in ejecting the washing machine basket by substantially, linearly shifting a stripper ring, that engages the terminal edge of the plastic washing machine basket, relative to the mold core. The '809 patent, col. 8, ll. 16-48. 3.Claim construction At the time of the Markman hearing, the parties agreed on the construction of only the following claim terms in the '909 (product) patent and patent: the '809 (process) CLAIM TERM AGREED DEFINITION 1. annular shaped like a ring 2. apertures openings 3. plurality of spaced apertures two or more openings spaced apart from one another 4. apertures located within said grooves openings located in the grooves 5. beveled angled, sloped, or slanted 6. lacks without In its ruling on claim construction following the Markman hearing, the court construed numerous additional claim terms that the court determined were “in dispute” at that time. The court presented its constructions in a chart showing a side-by-side comparison of the pertinent claim language with each party’s proffered construction and the court’s own construction. That chart is reproduced, below, for reference in the court’s disposition of the present summary judgment motions: The court turns, next, to consideration of the devices and processes that Maytag accuses of infringing its patents. 4. Electrolux’s accused devices and processes Maytag accuses two of Electrolux’s products, the so-called H 4- plastic washing machine basket and the so-called New Horizon plastic washing machine basket, of infringing certain claims of the '909 patent, and accuses Electrolux’s processes for making those washing machine baskets of infringing certain claims of the '809 patent. To put Maytag’s infringement claims and Electrolux’s invalidity counterclaims in perspective, Electrolux contends that the court should also be aware of one of its predecessor products, the so-called Old Horizon basket, which Maytag does not accuse of infringement. Electrolux asserts that the court should also be aware of Electrolux’s efforts to develop its own plastic washing machine baskets. Although Maytag disputes the relevance and materiality of the Old Horizon basket and Electrolux’s efforts to develop its plastic washing machine baskets, the court finds that some of the information about these matters is relevant, at least as background, to show the nature of Electrolux’s accused devices and processes. a. The non-infringing '105 patent and the Old Horizon basket Electrolux contends that it was one of the earliest United States developers of plastic washing machine baskets, which Maytag disputes. The parties do not dispute, however, that on July 25,1988, White Consolidated Industries, Inc., a predecessor in interest of Electrolux, filed an application as assignee for what subsequently issued on July 18, 1989, as United States Patent No. 4,848,105 (the '105 patent). See Electrolux’s Appendix, Vol. II, 552-61 (hereinafter the '105 patent). The '105 patent is for a “SELF-CLEANING LINT FILTER FOR CLOTHES WASHING MACHINE,” but the Abstract also explains that the spin tub, to which the lint filter is “integral,” “is formed as a unitary-piece from plastic material, and includes a central hub and radially outer bottom wall which are interconnected by a plurality of radially extending ribs. The ribs have spaces between them defining an annular gap, and an annular perforated lint filter is secured in the gap.” The '105 patent (Abstract). The plastic basket is illustrated below, using Figure 2 from the patent, which is described in the patent as “a vertical cross section through the spin tub of the washing machine of FIG. 1 prior to assembly of the lint filter,” and Figure 8 from the patent, which is described as “a plan view of the spin tub of FIG. 2.” Illustrations of “spin tub” from Electrolux’s '105 patent The Description of the Preferred Embodiment in the '105 patent describes the “spin tub,” in pertinent part, as follows: The spin tub 44 is provided with a vertically extending, generally cylindrical side wall 46 which may have an outward taper toward the upper end and may be provided with flutes or ribs 48 extending vertically at spaced locations to provide additional stiffness. The tub includes an outer bottom wall 47 integrally joined to the side wall 46, and extending generally radially inwardly from the side wall 46 for a spaced distance. Suitable perforations 49 may be formed in both the outer bottom wall 47 and the side wall 46 to allow the flow of water from the interior of the spin tub 44 to and from the outer tub 18. Inwardly from the outer bottom wall 47 is an upwardly sloping, conical portion 51 which terminates in a circular inner edge 52 a spaced distance from the axis of rotation. The tub 44 also includes a hub portion 53 having a radial flange 54 resting on a gasket 57 on top of the drive hub flange 41 to which it is secured by bolts 58. The '105 patent (Description of the Preferred Embodiment), col. 5,11. 17-35. Electrolux contends that it commercialized the basket reflected in the '105 patent, or one very similar to it, in the late 1980s, and more specifically still, that the Old Horizon basket that it sold commercially from the late 1980s to as late as October 1994, was disclosed by the '105 patent and had substantially the same structure as the basket described in the '105 patent. On the other hand, Maytag contends that Electrolux has also acknowledged that the Old Horizon basket differs from the basket disclosed in the '105 patent. The difference that Electrolux acknowledges is that the ribs on the inner surface of the sidewall of the Old Horizon basket were substantially rectangular, while the ribs disclosed in the illustrations from the '105 patent are trapezoidal. Maytag admits that the sidewalls in both the '105 patent and the Old Horizon baskets have ribs formed in the inner surface, but contends that there is insufficient disclosure in the '105 patent to determine the shape of the ribs or whether the shape of the ribs is the only difference. The parties agree that the Old Horizon basket has holes in both the base wall and the sidewall and that the holes in the base wall were formed by core pins during the molding process, while the holes in the sidewall were punched or perforated in a subsequent manufacturing step. The parties dispute whether the holes in the sidewall of the Old Horizon basket were “beveled.” b. The accused H + basket Although Maytag does not accuse the Old Horizon basket of infringing the patents-in-suit, Maytag does accuse Electro-lux’s next generation basket, the H + basket, and the process for manufacturing the H + basket of infringing the patents-in-suit. The parties agree that, in 1992, Electrolux began efforts to produce what is now identified as the H + basket and that, in the summer of 1994, Electrolux began to manufacture and sell washers incorporating the H + basket. The H + basket is illustrated below from a design drawing showing the basket in cross-section and from an “overhead” or “plan” view. The parties agree that the H + basket is made up of a base wall and a sidewall with inner and outer surfaces and that it has a number of projections or “scrub ribs” on the interior of the basket, but the parties appear to dispute whether those “scrub ribs” are “on” and “protrude from” the inner surface, as Electrolux maintains, or are, instead, “part of’ the inner surface of the sidewall, as Maytag maintains. The parties also dispute how the “scrub ribs” are formed: Electrolux asserts that they are formed when plastic material is added to the sidewall of the basket such that the inner surface of the sidewall surrounds each of the scrub ribs, while Maytag asserts that the “scrub ribs” are portions of the inner surface of the H + basket, which includes both the “scrub ribs” and what Maytag calls the “grooves” between them, and that they are formed in a single plastic injection molding step with the rest of the basket. On the other hand, the parties agree that the H + basket has holes molded into the sidewall of the basket between the “scrub ribs.” Maytag contends that the holes are located in “grooves” between the “scrub ribs” in the interior surface of the basket, while Electrolux contends that the holes are not recessed within the space between the “scrub ribs.” Maytag is alleging that the H + basket infringes Claims 24, 25, and 27 of the '909 patent. The parties agree that the H + basket is manufactured using a plastic injection molding process. Simplified illustrations of the apparatus used to manufacture the H + basket, in open mold and closed mold positions, are shown below. The parties agree, and these illustrations show, that the molding apparatus for the H + basket has two sides, the “A” side and the “B” side. In the illustrations above, the “A” side includes the cavity cover and sidewall members and the “B” side includes at least the mold core. After the H + basket is formed, the “B” side of the mold is moved away from the “A” side, although the parties dispute whether the “A” side is merely “stationary.” When the “B” side begins to move, the sidewall members begin moving away from the mold core and the core pins carried on the sidewall members are retracted from the holes in the basket. The parties, however, dispute precisely in what direction the core pins are carried and whether or not the core pins aid in any way in ejecting the basket from the mold. The parties nevertheless agree that the basket stays in contact with the mold core — indeed, Electro-lux contends that the basket stays “on” the main mold core and does not move relative to the core — until the “A” side and “B” side of the molding apparatus complete their separation phase. Ejection of the basket from the mold is effected, Electro-lux contends, or only aided and assisted, Maytag contends, by a stripper ring and ejector pins. Maytag contends that the process to manufacture the H+ basket infringes Claims 7, 8, and 9 of the '809 patent. c. The accused New Horizon basket Maytag also accuses another of Electro-lux’s products, the so-called New Horizon basket, and the process for manufacturing it of infringing the patents-in-suit. The parties agree that Electrolux began its efforts to replace the Old Horizon basket with the New Horizon basket in 1994. The parties also agree that Electrolux selected Triangle Tool, the same company that provided the tooling for Maytag’s patented washing machine basket, to build the tooling for the New Horizon basket. The court will return to that fact in its legal analysis, below. Electrolux began to manufacture washing machines that incorporate the New Horizon basket in the first part of 1996. The New Horizon basket is illustrated below from a design drawing showing the basket in cross-section and from an “overhead” or “plan” view, with a “detail” drawing of the space between the “scrub ribs” showing the placement of holes. Electrolux’s New Horizon basket The parties agrees that the Old Horizon basket, which Maytag does not accuse of infringement, and the New Horizon basket, which Maytag does accuse of infringement, have many similar structures. They also agree that one of the differences between the two baskets that is significant here is that the holes in the sidewall of the Old Horizon basket are bored or perforated in a separate manufacturing step after the basket is molded, while the holes in the New Horizon basket are formed in the sidewall during the molding process. They also agree that the “scrub ribs” of the New Horizon basket are formed in the molding process, like the “scrub ribs” of the Old Horizon and H + baskets, but that the shape and size of the “scrub ribs” differs between the H+ and New Horizon baskets. Although Maytag asserts that the area between the “scrub ribs” on the H + basket is a “long narrow channel,” i.e., a “groove,” Maytag contends that the area between the “scrub ribs” of the New Horizon basket is not “narrow.” Although Maytag does not accuse the New Horizon basket of infringing Claim 24 of the '909 patent, Maytag does accuse the New Horizon basket of infringing Claims 25 and 27 of that patent. Like the Old Horizon and H + baskets, the New Horizon basket is manufactured using a plastic mold injection process, using an apparatus with “A” and “B” sides that separate after the injection phase. The parties, however, dispute what drawings properly illustrate the molding apparatus for the New Horizon basket. Rather than resolve this factual dispute at this time, the court will present below each party’s illustrations of the apparatus, first in open mold position, then in closed mold position. In the illustrations above, the “A” side includes the cavity cover member and the “B” side includes at least the mold core, sidewall members, a stripper ring, and ejector pins. After the New Horizon basket is formed, the “B” side of the mold is moved away from the “A” side. When the “B” side begins to move, Electrolux contends that the sidewall members remain in place, so that the basket is held in place on the mold core during the separation of the mold core from the cavity cover member. When the sidewall members thereafter begin moving away from the mold core, the parties dispute whether the basket remains on the mold core during separation, as Electrolux contends, or whether the basket is ejected from the mold core as the sidewall members are shifted away from the mold core, as Maytag contends. The parties also dispute precisely in what direction the core pins are carried and whether or not the core pins aid in any way in ejecting the basket from the mold or even exert any force upon the molded basket. Ejection of the basket from the mold is effected, Electrolux contends, or only aided and assisted, Maytag contends, by a stripper ring and ejector pins. Maytag contends that the process to manufacture the New Horizon basket infringes Claims 7, 8, and 9 of the '809 patent. II. LEGAL ANALYSIS A. Standards For Summary Judgment The Federal Circuit has explained that it “applies its own law with respect to issues of substantive patent law and certain procedural issues pertaining to patent law, but applies the law of the regional circuits on non-patent issues.” Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1378-79 (Fed. Cir.2005) (citing Institut Pasteur v. Cambridge Biotech Corp., 186 F.3d 1356, 1368 (Fed.Cir.1999)). Thus, because summary judgment is essentially a procedural issue that is not unique to patent law, the Federal Circuit Court of Appeals reviews a district court’s decision on a motion for summary judgment, even in a patent case, under the summary judgment standards of the applicable regional circuit. MicroStrategy, Inc. v. Business Objects, S.A., 429 F.3d 1344, 1349 (Fed.Cir.2005); Collegenet Inc. v. Applyyourself Inc., 418 F.3d 1225, 1230 (Fed.Cir.2005). However, the Federal Circuit Court of Appeals “reviews a district court’s grant of summary judgment without deference and a denial of summary judgment for an abuse of discretion, drawing all reasonable inferences in favor of the nonmovant.” Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1372 (Fed.Cir.2005) (internal citation omitted) (citing Electromotive Div. of Gen. Motors Corp. v. Transp. Sys. Div. of Gen. Elec. Co., 417 F.3d 1203, 1209 (Fed.Cir.2005)). As this court has explained on numerous occasions, Rule 56 of the Federal Rules of Civil Procedure provides that a prosecuting or defending party may move, at any time, for summary judgment in that party’s favor “as to all or any part” of the claims at issue. Fed. R. Civ. P. 56(a) (summary judgment for claimant) & (b) (summary judgment for defending party). “The judgment sought shall be rendered forthwith 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). Under Eighth Circuit standards, the judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Quick, 90 F.3d at 1377 (same). The court is prohibited from making credibility judgments or engaging in fact-finding from conflicting evidence on a motion for summary judgment. Mershon v. St. Louis Univ., 442 F.3d 1069, 1075 (8th Cir.2006); Yates v. Rexton, Inc., 267 F.3d 793, 800 (8th Cir.2001). Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” ie., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). Ultimately, the necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994). The court will apply these standards in its disposition of the parties’ motions for summary judgment. B. What Record Can The Court Consider? Before turning to the disposition of the parties’ motions for summary judgment, however, the court must first resolve the question of what portions of the record it can properly consider. The parties have filed no less than four motions to strike various portions of their opposing party’s submissions in support of or resistance to summary judgment and one motion to supplement the record. 1. The motions to strike or supplement The first motion seeking to exclude portions of the summary judgment record from the court’s consideration is Maytag’s May 26, 2006, Motion To Strike Certain Paragraphs Of Electrolux Home Products, Inc.’s [sic] Corrected Statement Of Undisputed Material Facts (docket no. 157), which challenges portions of the Corrected Statement Of Undisputed Facts that Elec-trolux has offered in support of Electro-lux’s motion for summary judgment. In this motion, Maytag seeks an order striking, in particular, paragraphs 52, 53, 56, 99,113-15,178,179,186, 256, 257, 281, 290, 294, 297, 300, 301, 304, 311, 314, 319, 324-25, 329, 331, and 389 of Electrolux’s Corrected Statement Of Facts on the grounds that these statements “contain conclusions and facts from unsworn expert reports or are not supported by the evidence cited by Electrolux.” In response (see docket no. 170), Electrolux contends that Maytag overlooks contrary authority concerning the use of “unsworn” expert reports at summary judgment and that Maytag’s challenge to that evidence has been mooted by submission of a declaration of the expert in question adopting his unsworn report and the deposition of the expert, which confirmed the opinions in the un-sworn report. Electrolux also contends that its factual statements are adequately supported by record evidence when challenged statements are considered in the “context” of citations in support of related and adjacent factual statements. The second motion seeking to limit the record that the court can consider on summary judgment is Maytag’s June 9, 2006, Motion To Strike Certain Paragraphs Of Electrolux[’s] Statement Of Material Facts That Preclude Summary Judgment Of Infringement Of Claims 24 And 25 Of U.S. Patent 5,881,909 (docket no. 161), which challenges portions of the Statement Of Facts that Electrolux has offered in response to Maytag’s motion for summary judgment. In this motion, Maytag seeks an order striking paragraphs 8, 11, 17, 19, 25, 42, and 62-64 of Electrolux’s Statement Of Facts That Preclude Summary Judgment on the same grounds that Maytag sought an order striking the paragraphs of Electrolux’s Corrected Statement Of Facts in support of Electrolux’s motion for summary judgment. Electrolux’s response to that motion (docket no. 173), predictably, is also essentially the same as its response to Maytag’s first motion to strike. Not to be left out, on June 30, 2006, Electrolux filed its Motion To Strike Certain Paragraphs Of Maytag’s Purported Statements Of Fact (docket no. 176), which challenges portions of the Statements Of Facts that Maytag has offered in support of Maytag’s motion for summary judgment and in resistance to Electrolux’s motion for summary judgment. More specifically, Electrolux seeks an order striking paragraphs 4 and 5 of Maytag’s Statement of Undisputed Material Facts in Support of Its Motion for Partial Summary Judgment of Infringement of Claims 24 and 25 of U.S. Patent No. 5,881,909 filed April 28, 2006, and striking paragraphs 5, 6, 18, 29, 35, 43-44, 53, 58, 104, 113-115, 121, 124-128, 131, 147, and 150 of Maytag’s Additional Statement of Material Facts in Support of Maytag’s Opposition to Electrolux’s Motion for Summary Judgment filed May 26, 2006. Electrolux asserts that the challenged paragraphs are not supported by the “evidence” cited by Maytag or are supported only by inadmissible hearsay. In its response (docket no. 186), Maytag asserts that all of the challenged paragraphs are supported by admissible evidence and that for each paragraph where the supporting evidence is challenged as hearsay, that evidence falls within a well-recognized hearsay exception. On August 7, 2006, Maytag filed its Motion To Strike Electrolux[’s] Amended Response To Maytag’s Statement Of Undisputed Material Of [sic] Fact No. 48 (docket no. 201). In this motion, Maytag contends that Electrolux’s amended response to Statement No. 48 relies on documents never produced during discovery and that such documents, therefore, should be excluded from the record both at summary judgment and at trial, leaving Electrolux’s amended response without evidentiary support. In its response (docket no. 206), Electrolux contends that the evidence supporting the response in question was produced by Electrolux in response to materials that Maytag produced only after the close of fact discovery, despite prior timely requests by Electrolux. Thus, Electrolux contends that Maytag is responsible for any untimely production of the documents in question. On August 16, 2006, Electrolux also filed its Motion For Leave To File The Third Supplemental Appendix In Support Of [Its] Motion For Summary Judgment (docket no. 205), in which it seeks leave to supplement its appendix with the documents that Electrolux has provided to Maytag in support of its amended response to Maytag’s Statement of Undisputed Fact No. 48. That same day, Maytag filed a resistance to this motion (docket no. 204), and Electrolux filed a reply in further support of the motion on August 24, 2006 (docket no. 207). 2. Analysis a. What circuit’s law applies By extension of the principle that the Federal Circuit Court of Appeals applies the law of the regional circuit to summary judgment, it follows that Eighth Circuit law applies to the parties’ motions to strike and to supplement portions of the summary judgment record. Similarly, in deciding whether expert opinions on patent issues have sufficient factual foundation to forestall summary judgment, the Federal Circuit Court of Appeals “look[s] to regional circuit law for the applicable standard, since the factual foundation necessary to support an expert’s opinion is not a matter peculiar to patent law.” Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1051 (Fed.Cir.2001) (citing Arthur A. Collins, Inc. v. N. Telecom, Ltd., 216 F.3d 1042, 1048 (Fed.Cir.2000)). Thus, this court concludes that what record it can consider on the parties’ cross-motions for summary judgment is not a question controlled by Federal Circuit law, but one controlled by the law of the regional circuit. b. The admissible evidence requirement The parties challenge certain factual statements in support of or opposition to summary judgment for lack of supporting admissible evidence. As explained above, a movant for summary judgment must identify those portions of the record that show lack of a genuine issue of material fact, Hartnagel, 953 F.2d at 395, and the resisting party must then go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Thus, both a motion for summary judgment and a resistance to such a motion must be based on admissible evidence. See, e.g., Fed. R. Civ. P. 56(e) (affidavits in resistance to summary judgment must be based on admissible evidence); Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir.2005) (inadmissible evidence cannot be used to defeat summary judgment). ' As a general matter, however, this court finds it unnecessary to strike specific factual statements pursuant to the parties’ challenges to the admissibility of the underlying evidence, because the court finds that it can simply disregard portions of any statement of fact that are not supported by admissible evidence. See, e.g., Baxter v. Briar Cliff College Group Ins. Plan, 409 F.Supp.2d 1108, 1118-19 (N.D.Iowa 2006) (declining to strike challenged portions of the record, because the court could simply disregard inadmissible evidence in its disposition of the summary judgment motion). More specifically, until and unless the court determines that a specific allegation of undisputed fact or allegation that the fact is, indeed, disputed becomes critical to the determination of any issue on summary judgment, the court need not and will not indulge the parties in an assessment of the admissibility of the evidence supporting each and every challenged factual allegation. In addition to challenges to admissibility of supporting evidence, the court is presented with the question, upon Electrolux’s motion, of whether or not to allow the filing of a supplemental appendix, and the related question, upon Maytag’s motion, of whether or not to consider factual allegations based on documents that were purportedly only belatedly disclosed. The court cannot find that Maytag will be prejudiced by consideration of either the proffered Third Supplemental Appendix or the factual allegations supported by purportedly belatedly disclosed documents, because it is apparent that the belated disclosure of the documents in question is, at least in substantial part, the result of the late development of the issue in the course of litigation of the summary judgment motions and also, at least in part, the result of positions that Maytag has taken concerning discovery and disclosure of the pertinent documents. Most importantly, however, it is clear that the parties have had a full and fair opportunity to litigate the issue of the relevance of the documents in question, in the course of the litigation of their motions for summary judgment. Therefore, the court will grant Electrolux’s motion to file a Third Supplemental Appendix and the court will consider that Third Supplemental Appendix in its disposition of the parties’ motions for summary judgment. c. “Unsworn” expert reports Another issue presented by the parties’ motions to strike that warrants somé more detailed consideration is the question of the extent to which the court can consider “unsworn” expert reports at the summary judgment stage of proceedings. Some time ago, a judge of the United States District Court for the District of Minnesota noted that, while it might be true that courts routinely consider expert reports when deciding motions for summary judgment, courts do not do so where the reports are “unsworn or unverified.” Rainforest Cafe, Inc. v. Amazon, Inc., 86 F.Supp.2d 886, 904 (D.Minn.1999) (also holding that the fact that the report was prepared pursuant to the mandatory disclosure requirements of Rule 26(a) did not make it admissible on a Rule 56 motion for summary judgment, because of the differing purposes of the two rules, and the higher requirements for consideration of reports under Rule 56). Similarly, and even longer ago, the Supreme Court held that an unsworn statement of a lay witness does not meet the requirements of Rule 56(e), thus establishing the general principle that unsworn statements are not admissible at the summary judgment stage of the proceedings. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is difficult to see why an unsworn statement of an “expert” should be treated any differently than the unsworn statement of any other witness. Electrolux contends that this court has denied a motion to strike an unverified expert report offered in support of a motion for summary judgment, citing Doctor John’s, Inc. v. City of Sioux City, 389 F.Supp.2d 1096, 1129-30 (N.D.Iowa 2005), thereby suggesting that Maytag’s motion to strike unsworn expert reports is contrary to authority of this court. In Doctor John’s, this court did, indeed, deny a motion to strike an unsworn expert’s report from the summary judgment record, but Electrolux ignores the basis on which this court denied the motion to strike in that case. In Doctor John’s, this court denied the motion to strike on the ground that the disposition of the summary judgment motions in favor of the party moving to strike demonstrated that the movant was not prejudiced by the new, and purportedly unverified, expert evidence offered by the opposing party, and on the further ground that an extension of the deadline for discovery left the party moving to strike with ample opportunity to respond to the expert’s evidence at the time of trial. Doctor John’s, 389 F.Supp.2d at 1129-30. Thus, the decision in Doctor John’s certainly cannot be read to stand for the proposition that unsworn expert reports can generally be consid