Network Protection Sciences, LLC v. Juniper Networks, Inc. et al

Filing 337

FINAL PRETRIAL ORDER by Judge Alsup finding as moot 283 Motion in Limine; finding as moot 289 Motion in Limine; deferring ruling on 292 Motion in Limine; denying 294 Motion in Limine; denying 307 Motion in Limine (whalc1, COURT STAFF) (Filed on 9/26/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
NETWORK PROTECTION SCIENCES, LLC.,

11
For the Northern District of California

United States District Court

10

12
13

No. C 12-01106 WHA

Plaintiff,
v.

FINAL PRETRIAL ORDER

FORTINET, INC.,

14

Defendant.

15

/

16

FOR GOOD CAUSE and after a final pretrial conference, the Court issues the

17
18

following final pretrial order:
1.

This case shall go to a JURY TRIAL on SEPTEMBER 30, at 8:00 A.M., and shall

19

continue until completed on the schedule discussed at the conference. The issues to be tried

20

shall be those set forth in the joint proposed pretrial order except to the extent modified by order

21

in limine. This final pretrial order supersedes all the complaint, answer and any counterclaims,

22

cross-claims or third-party complaints, i.e., only the issues expressly identified for trial remain

23

in the case.

24

2.

For the reasons stated at the September 24 pretrial conference and September 25

25

hearing, this order rules as follows on the motions in limine submitted by Fortinet, Inc. and

26

Network Protection Sciences, LLC (NPS):

27
28

•

Fortinet MIL #1: NPS is granted leave to serve a trial subpoena on Secured
Retail Networks principal John Gapinski. Aside from this narrow issue, the
motion is DENIED AS MOOT.

1

•

Fortinet MIL #2: NPS will be limited at trial to presenting on evidence on the
willful infringement theories expressly disclosed in NPS’s August 31, 2012
Patent Local Rule 3-1(h) disclosures. To this extent, the motion is GRANTED.

•

Fortinet MIL #3: Based on the representation by defendant’s counsel that
Fortinet will not challenge the propriety of its own productions, the motion to
exclude testimony from Quinn Emanuel attorneys is DENIED WITHOUT
PREJUDICE. The motion to exclude the testimony of Dr. Bellovin is GRANTED.
The motion to exclude the testimony of Attorney Coker is DENIED, subject to the
following conditions: he may testify at trial after sitting for a two-hour
deposition by Fortinet, the costs of which will be borne by Fortinet.

•

Fortinet MIL #4: This motion is DENIED AS MOOT.

•

Fortinet MIL #5: The motion is DENIED. Furthermore, due to Fortinet’s
failure to properly disclose the basis of its laches contentions, Fortinet is
PRECLUDED from presenting this defense at trial.

•

NPS MIL #1: The motion is DENIED AS MOOT. Fortinet confirmed that it will
honor its withdrawal Dr. Kearl’s opinion on validity.

•

NPS MIL #2: The motion to exclude the testimony of non-infringement expert
Mr. Hicks is HELD IN ABEYANCE. At trial, Fortinet will be permitted to lay a
foundation for his testimony, followed by possible voir dire. Fortinet is
PRECLUDED from referencing Mr. Hicks in its opening statement.

•

NPS MIL #3: As to Mr. Cheswick’s opinions based on a construction of the
term “transparently,” the motion is DENIED. Claim construction issues not
covered in the prior claim construction order will be addressed in the jury
instructions. As to Mr. Cheswick’s alleged ‘vouching’ for facts, the motion is
DENIED.
As to the use of the Janus 2.1 reference and the alleged failure to disclose
that theory, the motion is DENIED. In parallel with the recently-issued summary
judgment order — which permitted the plaintiff to stand on its collective
infringement contentions — this order holds that defendant’s invalidity
contentions are adequate under our patent local rules, subject to possible Rule 50
practice after the close of evidence at trial.

2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

1

•

NPS MIL #4: The motion to exclude the term “patent troll” is DENIED, subject
to the following caveats: plaintiff should avoid use of the term unless doing so is
unavoidable given the evidence presented by its expert Professor Lichtman; the
parties shall also meet and confer regarding the possibility of substituting an
alternate term.
On the issue of whether evidence of litigation misconduct may be
presented to the jury, the this order holds that both sides are entitled to explain to
the jury what their lines of business are, including the finding that plaintiff
company was formed for the purpose of asserting the ’601 patent. The jury will
naturally wish to understand who the parties are and how they fit into the
national economy. It would be artificial to try to hide from the jury the true
operations of the litigating entities.
This issue also fits within the standing issue. Therefore, the nature of the
facility in Texas, the Texas employee, and the reason for the office in Texas will
all be permissible subjects for presentation in the presence of the jury. On the
other hand, no reference will be made to stonewalling or other litigation
misconduct — including stonewalling on the issue of standing — in the presence
of the jury without prior permission of the Court.
The final division of standing issues to be decided by the judge and by
the jury will be determined after the close of evidence at trial.

3.

Except for good cause, each party is limited to the witnesses and exhibits

2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17

disclosed in the joint proposed final pretrial order less any excluded or limited by an order

18

in limine. Materials or witnesses used solely for impeachment need not be disclosed and may

19

be used, subject to the rules of evidence.

20
21

4.

The stipulations of facts set forth in the joint proposed final pretrial order are

approved and binding on all parties.

22

5.

A jury of EIGHT PERSONS shall be used.

23

6.

The parties agree that the Federal Judicial Center video “An Introduction to the

24
25

Patent System” shall be shown to the jury. The time shall not be charged against either side.
7.

By agreement, each side shall have FOURTEEN HOURS to examine witnesses

26

(counting direct examination, cross-examination, re-direct examination, re-cross examination,

27

etc.). Opening statements, closing arguments, jury selection, and the informational patent video

28

shall not count against the limit. If, despite being efficient, non-duplicative, and
3

1

non-argumentative in the use of the allotted time, one side runs out of time and it would be a

2

miscarriage of justice to hold that side to the limit, then more time will be allotted. As agreed,

3

each side shall have 30 minutes for opening statements. The time limit for closing argument

4

shall be determined at a later date.

5

8.

The parties shall follow the Court's current Guidelines for Trial and

6

Final Pretrial Conference, separately provided and available on the Internet at

7

http://www.cand.uscourts.gov, which guidelines are incorporated as part of this order.

8
9

11
For the Northern District of California

United States District Court

10

9.

Trial briefs on issues to be resolved the following day shall be submitted by 5:00

p.m.; any reply submission will be due by 7:00 p.m.
10.

The parties agree that expert witnesses may be present in the courtroom when

any other witnesses are testifying.

12
13

IT IS SO ORDERED.

14
15

Dated: September 26, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
4