Kenu, Inc. v. Belkin International, Inc.
Filing
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SUPPLEMENTAL ORDER RE KENU'S MOTION IN LIMINE NO. 2. Signed by Judge James Donato on 6/12/2018. (jdlc2S, COURT STAFF) (Filed on 6/12/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KENU, INC.,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 15-cv-01429-JD
SUPPLEMENTAL ORDER RE KENU’S
MOTION IN LIMINE NO. 2
v.
BELKIN INTERNATIONAL, INC.,
Defendant.
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Kenu requested in its motion in limine no. 2 to exclude evidence or argument by Belkin
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about reliance on advice of counsel as a defense to willful infringement. Dkt. No. 127. In
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response to the Court’s questions at the pre-trial conference, Belkin said it intended to present this
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evidence through testimony by non-attorney witnesses only, and not by any of the attorneys who
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gave the non-infringement advice. The Court took the issue under submission.
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A good argument can be made that Belkin’s proposed method of getting in the advice of
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counsel is so inadequate that it should be excluded entirely. As our Northern District of
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California’s Model Patent Jury Instruction 3.8 instructs, the jury “may consider whether [Belkin]
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relied on a legal opinion that was well-supported and believable” in assessing willfulness.
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Without an attorney on the witness stand who can testify and be cross-examined about, for
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example, the research and investigation performed prior to an opinion being formulated, the jury
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cannot reasonably or meaningfully evaluate whether the advice of counsel was “well-supported.”
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Cf. Eltech Sys. Corp. v. PPG Indus., Inc., 710 F.Supp. 622, 637-38 (W.D. La. 1988). That lacuna
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strongly points to exclusion of Belkin’s proposed testimony.
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Even so, the Court will permit Belkin to introduce the evidence if it so chooses. Belkin is
advised that the Court will give Model Instruction 3.8 with the “well-supported” language, and
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will allow Kenu to argue to the jury the lack of evidence permitting it to assess whether the oral
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advice testified to was well-supported. In addition, the Court will likely give a limiting instruction
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to the jury to make clear that the evidence is not being proffered for the truth of the attorney’s out-
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of-court statement, i.e., that Belkin’s product does not infringe Kenu’s design patent. The Court
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has concerns that the jury will be confused if it hears that an attorney opined that the product does
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not infringe, so it will fashion an instruction to try to ensure the jury is not misled or improperly
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swayed by such evidence.
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IT IS SO ORDERED.
Dated: June 12, 2018
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United States District Court
Northern District of California
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JAMES DONATO
United States District Judge
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