Oracle Corporation et al v. SAP AG et al
Filing
1157
Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)
EXHIBIT 21
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Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
THERASENSE, INC., Plaintiff,
v.
BECTON, DICKINSON AND COMPANY, Defendant.
and Consolidated Cases.
Nos. C 04-02123 WHA, C 04-03327 WHA, C
04-03732 WHA, C 05-03117 WHA.
May 22, 2008.
Jason Rantanen, Rohit K. Singla, Munger Tolles &
Olson LLP, San Francisco, CA, Jeffrey I. Weinberger, Munger Tolles & Olson LLP, Los Angeles,
CA, David Wille, Matthew A. Hayenga, Baker
Botts LLP, Dallas, TX, James W. Cannon, Jr.,
Baker Botts L.L.P., Austin, TX, John Walter Peck,
Ted G. Dane, Esq., Munger, Tolles & Olson LLP,
Los Angeles, CA, Jose E. Rivera, Karen L. Hale,
Abbott Park, IL, Maria W. Boyce, Steven Mitby,
Baker Botts LLP, Houston, TX, Shannon Harpold
Hutcheson, Attorney at Law, William P. Johnson,
Baker Botts L.L.P., Austin, TX, for Plaintiff.
Bradford J. Badke, Brandon H. Stroy, Brien P.
Santarlas, Neal K. Dahiya, Sanjeev Mehta, Ropes
& Gray LLP, New York, NY, Mark D. Rowland,
Mark Daniel Rowland, Gabrielle Elizabeth Higgins,
Ropes & Gray LLP, Palo Alto, Ca, for Defendant.
SECOND OMNIBUS ORDER ON MOTIONS
FOR FINAL PRETRIAL CONFERENCE SUBMITTED WITH ORAL ARGUMENT
WILLIAM ALSUP, District Judge.
INTRODUCTION
*1 This is the second omnibus order in a set of
such orders that resolve various motions leading up
to the trial of this case. The first addressed motions
were decided on the briefings only. This order resolves all other motions after oral argument on May
21, 2008. The severance motions will be addressed
separately.
BAYER MOTION IN LIMINE NO. 1
(JOHNSON RELIANCE ON TEST)
GRANTED. One of the worst abuses in civil
litigation is the attempted spoon-feeding of clientprepared and lawyer-orchestrated “facts” to a hired
expert who then “relies” on the information to express an opinion. Ordinarily, if a fact witness tries
to recount to the jury some “fact” earlier communicated to the witness, a hearsay objection would be
sustained, at least when offered to prove the truth of
the alleged fact. For example, if a fact witness
wishes to testify that a coating was made from zinc
rather than copper based solely on what someone
told the witness, a hearsay objection would ordinarily be well-taken.
To circumvent this and to manipulate the precise content of “facts,” some lawyers hire experts to
promulgate favorable hearsay to the jury. The expert is induced to “rely” on some factoid told to the
expert by the client or someone else outside the
courtroom. For example, the expert may be induced
to rely on a statement that a metal coating was zinc
and not copper. Then the lawyer tries to use Rule
703 to place the hearsay information before the
jury. Rule 703 provides (italics added):
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the
subject, the facts or data need not be admissible
in evidence in order for the opinion or inference
to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by
the proponent of the opinion or inference unless
the court determines that their probative value in
assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
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To continue with the example, the expert then
testifies before the jury that the coating was zinc
and not copper, claiming that he or she regularly relies on such hearsay. The plan is for the hearsay to
sail into evidence when the truth might be materially different, such as the coating was actually an
alloy containing more zinc than copper.
The source is almost always highly partisan,
such as the client or another forensic witness on retainer. Everything is kept secret from the other side
until the expert report, which almost always comes
after the close of fact discovery. In this manner, the
other side rarely learns of the supposed “fact” until
after the close of fact discovery, thereby immunizing it from vetting via discovery. Secrecy is
achieved by cloaking the factoid inside the work
product or attorney-client privileges. What is more,
the expert will only be told of the results of the client's work if it turns out favorably, the lawyer concealing all adverse or confidential test results and
facts from the testifying expert.
*2 This order holds that no professional should
reasonably rely on such a rigged and biased source
of information for any materially important fact to
his or her opinion, at least certainly not in the circumstances of the present case. There is no
“particular field” in which experts go along with
this charade other than in litigation. The field of
testifying for a living is not what Rule 703 had in
mind.
This order independently finds that under Rule
403, the “probative value” of such testimony is far
outweighed by risk of “misleading the jury,” such
that references and opinion dependent thereon
should be excluded. The whole point of the maneuver is to pass off client-prepared litigation-driven
“tests” as fact by having the “expert” bless them. In
the context of complicated science, the jury can be
easily misled into believing that the tests in question were tested and subjected to cross-examination.
Coming from the expert alone, this order fur-
ther finds that any opinion based on such untested
and partisan foundation is not based on sufficient
facts and data within the meaning of Rule 702. As
the gatekeeper to scientific evidence under
Daubert, the Court holds that the foundation tests
should be testified to directly by the ones who actually did the tests, so that they can be quizzed under
oath. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993).
The traditional and correct way to proceed is
for a foundational witness to testify firsthand at trial to the foundational fact or test and to be crossexamined. Then the expert can offer his or her
opinion on the assumption that the foundational fact
is accepted by the jury. The expert can even testify
before the foundation is laid so long as counsel represents in good faith that the foundational fact will
be laid before counsel rests. When the foundational
fact is tested during fact discovery, as by a deposition, for example, it is often true that opposing
counsel forego any objection and allows the expert
to summarize the foundation.
To be sure, there will be times when an expert
can work directly with client representatives to run
tests and to develop facts and reasonably rely on
the results in expressing an opinion at trial. For example, if an expert chooses not to conduct a copper-zinc test himself, he might supervise qualified
professionals employed by the client to do so. Even
if an expert does not supervise the client-conducted
test, the expert might scrutinize a client-conducted
test, its protocol, and its participants so carefully
that it would be reasonable to rely on it after the
fact.
Given the obvious bias of clients, however, any
litigation-driven test must be subjected to
heightened scrutiny such that it would be reasonable for a truly independent professional in the field
of endeavor to base an important decision on it. The
more central the “fact” issue is in the overall opinion and overall trial and the more controverted the
“fact” is in the context of the case, the more due di-
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ligence an expert should exercise before merely
taking a partisan's word. At some point, as here, the
supposed fact is too important and too controverted
and should be addressed by witnesses with
firsthand knowledge.
*3 In the present case, Abbott proffers the
opinion of Dr. Jay Johnson to support its claim that
the accused products do not have a “whole blood
filtering member,” as required by claim 1 of the
'551 patent. Dr. Johnson's opinion is based in part
on three experiments that were conducted by Abbott employees: (1) the “paper towel” experiment;
(2) the “hematocrit” experiment; and (3) the
“washing” experiment. But Dr. Johnson did not
participate in, observe, or supervise any of the experiments. Nor did Abbott permit defendants to
question one Abbott-employee witness who did
conduct and participate in the experiments, concealing all of the tests from discovery during all phases
of discovery under a claim of privilege. The same
instruction not to answer would plainly have been
given as to all other fact deponents involved in the
tests (even if their identities had been known). The
entire foundational project was a secret clearly intended to thwart discovery into the foundation. It
was sprung on all opponents only after the close of
fact discovery. Without any foundation, Dr. Johnson's testimony would be improper. All testimony
and opinions about the tests are hereby excluded.
Whether or not curative discovery could now,
at this late hour, be undertaken was discussed at the
hearing but it is unclear whether it would be fair
and would be practical at this stage. Plaintiffs are
invited to seasonably submit a cure proposal for depositions and documents and to be specific as to
what relevant documents, including emails and correspondences with counsel and other forensic consultants, plaintiffs would produce versus try to
withhold-and on what timetable. The burden is on
plaintiffs to cure this foundational issue. Before any
such proposal is made, all counsel concerned must
meet and confer over the proposal and any objections thereto. Meanwhile, the testimony in question
is excluded.
BAYER MOTION IN LIMINE NO. 3
(REFERENCE LABEL)
DENIED. A judge should not “fix up” unfortunate wording used by a litigant in its own documents. This wording will have to be explained under oath and fought out before the jury. An instruction will be given to the jury as to what Judge Jenkins ruled. At this stage and on this record, the
Court cannot categorically find that the internal
Bayer documents are excludable under Rule 403.
BD/NOVA MOTION IN LIMINE NO. 1
(JOHNSON AND THE BD TEST STRIPS)
DENIED WITHOUT PREJUDICE to renewal under Rule 50. Movant has not carried its burden
to show a total failure of proof. All experts,
however, including Johnson will be limited to the
four corners of their expert reports on direct examination. As to the claim construction issue, it is not
necessary that the blood drop reach both electrodes
at exactly the same moment. But it must be designed to completely cover both electrodes at a moment in time.
ROCHE MOTION IN LIMINE NO. 2
(STANDING)
GRANTED. Plaintiffs will be barred from
presenting any evidence of lost profits for infringement of the '551 patent in relation to sales by Abbott Diabetes Care, Inc. (“ADC”). Plaintiffs have
not shown that ADC is the exclusive licensee of the
'551 patent. Nor can they. It is manifest that there is
at least one other licensee, so ADC is not the only
licensee. Here are the dispositive facts.
*4 Abbott Laboratories is the sole owner of the
'551 patent, but it does not sell or make any
products embodying the patented invention. ADC
makes blood glucose monitoring products and sells
them to its subsidiary Abbott Diabetes Care Sales
Corporation, who in turn distributes the products
publicly. Plaintiffs seek the lost profits of ADC as a
measure for damages for the alleged infringement
of the '551 patent. Under Federal Circuit law, a li-
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censee may have standing to sue as a co-plaintiff
with the owner of a patent only if that licensee is an
exclusive licensee. See Rite-Hite Corp. v. Kelly Co.,
Inc., 56 F.3d 1538, 1552 (Fed.Cir.1995). If the license is non-exclusive, the lost profits of the licensee are not recoverable. The distinction between
exclusive and non-exclusive licenses is thus critical.
Here, the complaint does not allege that ADC
is the exclusive licensee of the '551 patent. In fact,
the record indicates that Abbott licensed the '551
patent to another entity prior to filing this suit. Significantly, plaintiffs responded to an interrogatory
in August of 2005 by stating Abbott had “entered
into a licensing agreement with Lifescan” in connection with a settlement agreement for a previous
patent suit. Plaintiffs later amended this responseon the last date for fact discovery-to indicate that
Abbott had never licensed the '551 patent to anyone
other than ADC.
After the continued representations to Judge
Jenkins and defendants that Abbott had never licensed the '551 patent, Judge Jenkins ordered
plaintiffs to produce a redacted copy of the Lifescan agreement. Judge Jenkins noted in relevant part
(Dkt. 605 at 5):
Abbott's repeated representations to Defendants,
to the Magistrate, and to this Court that it has not
provided any ‘license’ to LifeScan fail to convince this Court that the contents of the settlement agreement are irrelevant to lost profits issues.... It is evident to the Court, from its review
of the settlement agreement [in camera ], that the
provisions of the settlement agreement alter the
legal relationship between Abbott and LifeScan
in a manner that, in patent parlance, might well
be described as some form of a ‘license.’
The Lifescan agreement provided (Hutchenson
Exh. C):
Covenant Not to Sue: Abbott covenants not sue
LifeScan or DDI in the United States and/or
Canada for any past or future infringement of the
Abbott Patents with respect to the Covered
Strips. The covenant-not-to-sue extends to United
States and Canada, including agents, representatives, suppliers, distributors, resellers, purchasers,
end-users, shareholders, officers, directors, attorneys, employees and Affiliates (emphasis added).
The “Abbott Patents” included the '551 patent
and the “Covered Strips” were blood glucose testing strips made and sold by Lifescan.
Although plaintiffs argue this was not a license,
this argument is most unconvincing. The fact is the
agreement unequivocally prohibited Abbott from
suing Lifescan “for any past or future infringement
of the Abbott Patents with respect to the Covered
Strips” (Hutchenson Exh. C). As the Federal Circuit
put it in Spindelfabrik Suessen-Schurr, Stahlecker
& Grill GmbH v. Schubert & Salzer Mascinenfabrik Aktiengesellschaft, 829 F.2d 1075, 1081
(Fed.Cir.1997):
*5 As a threshold matter, a patent license agreement is in essence nothing more than a promise
by the licensor not to sue the licensee.... In any
event, patent license agreements can be written to
convey different scopes of promises not to sue,
e.g., a promise not to sue under a specific patent
or, more broadly, a promise not to sue under any
patent the licensor now has or may acquire in the
future.
The Lifescan agreement does exactly this-i.e.,
obligates Abbott not to sue for infringement, including for future infringement. Regardless of how
it was worded, Lifescan now has the right to practice the '551 patent. This license has extended not
only to Lifescan, but to all distributors and other
entities along its chain of distribution.
Plaintiffs' contradictory statements and stonewalling demonstrate that they eventually realized
the implication of their Lifescan agreement. In an
effort to circumvent the problem, they have repeatedly altered their story and offered conflicting
explanations to fill in all the missing gaps. In dis-
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covery, plaintiffs conceded that they had granted
Lifescan a license for the '551 patent. Then, in a
brazen field reversal on the last day of discovery,
plaintiffs substituted the opposite answer for the
original answer.
Plaintiffs argue that even if the Lifescan agreement were construed to be a licensing agreement
that it should not preclude ADC's ability to recover
lost profits because such a result would preclude all
exclusive licensees from recovering lost profits
after any settlement including such a license. This
policy argument is unpersuasive. To settle a case,
there is no requirement to give a future license, i.e.,
a patent holder can instead seek damages and a
promise to stop infringement. Alternatively, a patent holder may manufacture on its own and need
not setup the separate sales companies as Abbott
has done here. These issues should have been clear
to Abbott long before granting Lifescan a license in
the first place. The ramifications of granting the license should have been one of the many considerations Abbott evaluated when deciding to settle the
Lifescan litigation. Significantly, the Lifescan
agreement was executed between Abbott and Lifescan. Not ADC. Abbott, as the owner of the patent,
could have still sought any lost profits for infringement, see Golden Blount, Inc. v. Robert H. Peterson
Co., 438 F.3d 1354, 1371-72 (Fed.Cir.2006), although such a claim would be very weak given its
peculiar arrangements with ADC.
This order finds and holds that ADC is not the
exclusive licensee of the '551 patent. Plaintiffs are
hereby prohibited from presenting any evidence of
ADC's lost profits for infringement of the '551 patent. It is unnecessary to reach the issue of whether
there was an implied license with ADC, for this order assumes that there was an implied agreement.
PLAINTIFFS' UNNUMBERED MOTION IN
LIMINE TO PRECLUDE DISCUSSION OR
EVIDENCE REGARDING NEGOTIATIONS
AND AGREEMENTS
*6 DENIED as to Lifescan agreement. This
agreement is highly relevant to the issue whether
ADC is an exclusive licensee (as well relevant to
the marking and irreparable harm issues). The
Court is disappointed that Abbott stonewalled and
concealed the Lifescan agreement. Judge Jenkins
all but found that Abbott had deliberately misled
the Court in its representation that the agreement
included no license. Judge Jenkins eventually read
it in camera and ordered it to be produced, rebuking Abbott for its semantic hairsplitting over what
constitutes a license. Elsewhere in this omnibus order explains why the agreement is a license despite
being labeled as a “covenant not to sue” for past or
future infringement. In turn, this seems to explain
why Abbott stonewalled on this document, for it
originally wished to hold ADC out as an exclusive
licensee.
Rule 408, it must be added, only bars introducing offers to compromise to prove liability or disprove liability or to prove the value of a claim. The
Lifescan Agreement would be used for an entirely
different purpose-to show that ADC is not the only
licensee. Thus, the Lifescan Agreement-which resolved a lawsuit-would not be used for any of the
prohibited purposes. Note well that Abbott could
have settled that litigation without giving a license
going forward, i.e., it could have accepted cash and
released its claim for past damages and insisted no
further infringement. Instead, it agreed that Abbott
would not-in the future-sue Lifescan or its customers in the chain of distribution. That part of the
agreement is a license-pure and simple. A license is
a license is a license. That it was folded into a litigation settlement does not change that fact. At that
moment, ADC ceased being an exclusive licensee,
if it even was beforehand. Proving that fact in no
way implicates any of the prohibited purposes in
Rule 408.
As to the Abbott-BD communications, the
evidence shows that BD/Nova, starting with counsel's letter dated August 4, 2003, agreed that the licensing discussions between BD/Nova and
plaintiffs would be treated in confidence as settlement discussions. BD/Nova is estopped to argue
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otherwise now. For now, the motion is GRANTED
. If, however, plaintiffs leave a false impression before the jury as to what happened, then the issue
will be re-visited.
BD/NOVA MOTION FOR SUMMARY JUDGMENT ('890 PATENT INVALID DUE TO PRIOR PUBLIC USE)
DENIED. The issue of prior public use requires balancing of several factors. Defendant has a
reasonable case that there was no confidentiality by
mid-September 1994, especially given the shipment
to the Netherlands on September 30, 1994. Plaintiff
has evidentiary support, however, including verbal
testimony, that can shore up confidentiality, if fully
credited. On the present record, therefore, the summary-judgment motion must be DENIED. The
Court, however, is concerned that Abbott has violated its obligations of disclosure and discovery, at
least as to some documents. The recently produced
confidentiality agreement, for example, clearly
must be excluded as having been produced far too
late
without
substantial
justification.
“Inadvertence” will not do. Neglect, even if excusable, does not translate into substantial justification.
Conceivably, other materials and witnesses will be
excluded on renewed objections at trial. For now,
movants have not carried their burden to eliminate
all possible material issues of fact.
BD/NOVA MOTION IN LIMINE NO. 2 (510(K)
AND CLINICAL USE RE '890 PATENT)
*7 DENIED. It has been the practice of the undersigned judge to enforce all local patent rules, including those relating to the disclosure requirements for documents evidencing conception or a reduction to practice. See Local Patent Rule 3-2(b).
On the other hand, Judge Jenkins has previously allowed Abbott to present the 510(k) application and
other clinical-use evidence to establish an actual reduction practice for the '890 patent. The undersigned's ability to fully enforce the local patent
rules is therefore eclipsed by Judge Jenkins' allowance of at least some of such evidence.
Exactly what preclusion force the local patent
rules exert will need to be determined on a document-by-document basis. For sure, the confidentiality agreement produced by Abbott only last month
will certainly not be allowed into evidence, at least
at the behest of Abbott. Defendants suggest that
Abbott has yet to produce hundreds, if not thousands, of documents relating to its clinical trials.
These documents, if eventually produced, will also
be excluded at trial if offered by Abbott. For its
part, however, Abbott has shown that it produced
many documents as early as December 2005 evidencing that the clinical trials took place before the
filing date of the Ikeda patent. Once again though,
these documents must be considered on an individual basis before offered into evidence.
Most of the 510(k) application is self-serving
hearsay. But it is at least admissible to show that it
was in existence at the time it was filed, if that is
relevant. A categorical exclusion must be denied.
Defendants request that Abbott be barred from using any testimony to supplement the 510(k) application and the other documentary evidence produced
by Abbott relating to the clinical trials. The request
is denied. This does not mean that Abbott can offer
testimony without any limitation. Abbott's witnesses must testify based on personal knowledge.
The motion is DENIED.
BD/NOVA MOTION IN LIMINE NO. 3 (TO
EXCLUDE PRIOR INVENTION '890 PATENT)
DENIED. While BD/Nova casts its motion to
exclude prior invention as a motion in limine, it is
actually requesting the Court to reconsider an issue
previously decided. In particular, BD/Nova argues
that plaintiffs have not met their burden to show
that the patented invention was reduced practice before the filing date of the Ikeda prior art reference.
But this argument was already presented to and rejected by Judge Jenkins (Dkt. 534 at 37):
The declarations of Dr. Watkin and Dr. Scott also
provide competent evidence that the '890 invention was reduced to practice, somewhere in the
world, no later than when the 510(k) FDA application was submitted in November 2004.... Al-
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though Abbott's evidence that Dr. Watkin visited
the United States to provide information about
the invention to the United States research team
does not satisfy this showing, the testimony that
Abbott's witnesses have provided regarding the
clinical trials that were performed on the test strip
in New Mexico, Texas and Massachusetts
between August and October 1994 is sufficient
evidence to meet Abbott's burden of production
that the '890 invention had been embodied in the
tangible from in the United States no later than
November 1994, particularly given the nearly
identical drawings in the 510(k) application and
the '890 patent.
*8 BD/Nova now maintains there is no issue of
material fact as to whether the invention was reduced to practice prior to the relevant date. In light
of the previous holding, however, this contention is
untenable. It is also significant to note that the
greater part of BD/Nova's current motion relies on
extremely minor details regarding the corroboration
requirements for proving an actual reduction to
practice. But “an actual reduction to practice does
not require corroboration for every factual issue
contested by the parties.” Cooper v. Goldfarb, 154
F.3d 1321, 1330 (Fed.Cir.1998). Rather, the corroboration requirement is evaluated under a “rule of
reason” standard. Plaintiffs have presented significant evidence-through declarations and documentary
support-to proceed to trial on this issue. Finally, the
Court is not yet persuaded that the “mesh” statements are inconsistent with the claim limitation.
to take discovery (other than normal crossexamination of deponents after BD/Nova counsel's
examination). If BD/Nova decides to take advantage of this opportunity, it must file an unqualified
acceptance, by MAY 27 AT NOON, in which case
the trial of the '890 issues will be postponed. If it
does so, however, the late-produced agreement will
not be excluded, as the discovery will cure the
problem.
IT IS SO ORDERED.
N.D.Cal.,2008.
Therasense, Inc. v. Becton, Dickinson and Co.
Not Reported in F.Supp.2d, 2008 WL 2323856
(N.D.Cal.)
END OF DOCUMENT
***
Finally, the Court is concerned that BD/Nova
has been prejudiced by plaintiffs' eleventh-hour
amendment of the '890 issues, specifically as to the
issues of prior invention and prior public use. To
mitigate this prejudice, the Court will extend BD/
Nova the option to take three depositions and to
propound requests for documents, either from Abbott or from third parties, all to be completed by July 31, 2008. Since plaintiffs are responsible for this
eleventh-hour snafu, plaintiffs shall not be allowed
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