Medtronic Inc. et al v. W.L. Gore & Associates, Inc.

Filing 565

ORDER Re Gore's Motion in Limine No. 5. Signed by Judge Jeffrey S. White on August 18, 2009. (jswlc3, COURT STAFF) (Filed on 8/18/2009)

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MEDTRONIC, INC., et al., Plaintiffs, v. W.L. GORE & ASSOCIATES, INC., Defendant. / No. C 06-04455 JSW ORDER RE GORE'S MOTION IN LIMINE NO. 5 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter comes before the Court upon consideration of Gore's Motion in Limine No. 5, to exclude evidence contrary to the Court's claim construction. Medtronic contends that Dr. Sinclair will opine that "if a nitinol alloy achieves pseudoelasticity (also known as superelasticity) upon removal of stress, SIM was necessarily created in the alloy." (See Opp. Br. at 2:23-26.) If the Court understands this statement correctly, it implies that evidence that an alloy behaves pseudoelastically is conclusive evidence that the alloy contains stress-induced martensite, rather than evidence that the alloy may contain stress-induced martensite. As the Court understand's Gore's argument, Dr. Sinclair should not be permitted to testify that an alloy that behaves pseudoelastically is conclusive evidence that the alloy contains stress-induced martensite, because an alloy that behaves pseudoelastically also may contain thermal induced martensite, i.e. pseudoelasticity is not conclusive evidence that stress-induced martensite is present. In the Court's view, that is a matter for the experts to address and for the jury to decide. For that reason, the Court tentatively denies motion in limine no. 5, but will hear argument from Gore on this issue following jury selection. 1 2 3 4 5 6 7 8 9 10 However, the Court also notes that if the parties, in fact, dispute the meaning of the term "pseudoelastic," that dispute impacts the Court's construction of the disputed claim term "catheter at least partly formed from a pseudoelastic shape memory alloy." Because the parties'dispute centered on the term "catheter" and did not provide a separate construction of "pseudoelastic shape memory alloy," the Court defined that term to mean "a tube inserted into a cavity or duct that is made of, at least in part, a pseudoelastic shape memory alloy." Accordingly, the parties are HEREBY ORDERED to meet and confer by no later than August 24, 2009 on their respective positions regarding the meaning of the term "pseudoelastic." If the parties are able to resolve the matter, they shall file a stipulation and proposed order with the Court setting forth their agreement. If the parties are unable to resolve the matter, they shall file a one page brief setting forth their positions by no later than 12:00 p.m. on Tuesday, August 25, 2009. The Court reminds the parties that under the Local Rules, all footnotes must be in 12 point font. The Court shall then address the matter following jury selection on August 26, 2009. IT IS SO ORDERED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: August 18, 2009 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 2

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