summary judgment of obviousness. However, Perricone did move for summary judgment of nonobviousness in 2001. See Dkt. #216. The issue of obviousness being fully briefed by the parties (see Dkt. # # 417, 419, 421) the Court finds that it is appropriate to consider the issue on summary judgment, rather than conducting a trial in the absence of a genuine issue of material fact. The Court further finds that Medicis’ motion relies only on prior art otherwise disclosed to Perricone during discovery, and that there is no prejudice to Perricone from the nature of Medicis' discovery responses. Thus, the Court grants leave to file the 2006 motion for summary judgment, and renews the 2001 motions for summary judgment. 8 . See e.g., Monaplastics, Inc. v. Caldor, Inc., 378 F.2d 20, 21 (2d Cir.1967) (<HOLDING>) Further, the Court notes that Perricone has
holding that summary judgment of obviousness was appropriately granted despite lack of expert testimony because device would have been obvious to persons having ordinary skill in the plastics molding industry and would even have been obvious to ordinary laymen of modest intelligence holding that counsels failure to move to suppress the defendants confession constituted ineffective assistance because it was obvious that the confession would have been suppressed holding that the determination of whether a products dangers are obvious is made from the perspective of an ordinary user of the product rather than an ordinary person who is unfamiliar with the product holding that even in separate trial other crimes evidence would not have been admissible and identification testimony would have been admissible holding that a trial court abused its discretion by excluding the testimony of an expert witness where the testimony would have been relevant to show that the defendant breached a duty of care