Angioscore, Inc. v. Trireme Medical, Inc. et al

Filing 632

ORDER REGARDING SCHEDULE FOR PATENT TRIAL. Jury Selection set for 9/9/2015 08:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. 7 Day Jury Trial(Evidence Portion) set for 9/14/2015 08:30 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Pretrial Conference set for Friday, 8/21/2015 09:00 AM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.. Signed by Judge Yvonne Gonzalez Rogers on 4/29/15. (fs, COURT STAFF) (Filed on 4/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANGIOSCORE, INC.,

Case No. 12-cv-03393-YGR

Plaintiff,
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v.
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TRIREME MEDICAL, INC., ET AL.,

ORDER REGARDING SCHEDULE FOR
PATENT TRIAL

United States District Court
Northern District of California

Defendants.
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On April 21, 2015, the Court held a pretrial scheduling conference with respect to the

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patent claims in the instant case. All parties were present. The Court enters the following orders

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emanating from that conference.

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1. Trial Date: A jury trial shall begin on all remaining issues starting on Wednesday,

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September 9, 2015 with jury selection. Evidence shall begin on Monday, September

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14, 2015. Parties shall each be limited to fifteen hours, including evidence and argument,

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and not including voir dire. Trial is estimated to last seven (7) court days including jury

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selection; no trial shall occur on September 24 and 25. Closing arguments shall occur on

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September 28, 2015.

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2. Pretrial Filings:
a. As stated on the record at the pretrial conference, plaintiff shall finalize their list of

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claims at issue no later than May 1, 2015. By May 8, 2015, the parties shall

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submit a Joint Statement indicating which claims need further construction and

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any issues that remain, and shall provide a proposed schedule for briefing.

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b. Pretrial Conference will be held August 21, 2015 at 9:00 a.m.

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c. The parties may submit an additional two-page questionnaire for the jurors. If

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possible, the proposed questionnaire should be jointly submitted.
3. Trial Readiness Binder:

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The parties shall deliver two (2) Trial Readiness Binders. These binders are due

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August 7, 2015.

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4. Expert Witnesses:

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Parties are advised that copies of a curriculum vitae or the experts reports

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themselves are not admissible. However, the Court will entertain a joint request to

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United States District Court
Northern District of California

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admit them.
5. Motions in Limine:
a. The Court hereby orders: (a) that witnesses shall be excluded until testimony is

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completed; (b) that there shall be no reference to or evidence presented of

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settlement discussions, mediation, or insurance; and (c) that there shall be no

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reference to or evidence presented of wealth or lack thereof of any party except in

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the punitive damage phase of a case, to the extent it exists. A motion in limine

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refers “to any motion, whether made before or during trial, to exclude anticipated

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prejudicial evidence before the evidence is actually offered.” Luce v. United States,

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469 U.S. 38, 40 n. 2 (1984).

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b. The Court reiterates that the parties are required to exchange motions in limine, and

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meet and confer regarding the same, as per the standing order. With respect to any

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further motion in limine practice, such motions shall be filed on Tuesday, July 24,

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2015 after which the parties shall meet and confer and attempt to resolve the

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motions. To the extent not resolved, any opposition shall be filed on August 7,

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2015. The parties shall then deliver two chambers copies on that date, organized in

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the manner set forth in the standing order.

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c. Parties shall be responsible for admonishing all witnesses of the Court’s pretrial

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rulings. Failure to comply with a ruling by the Court may result in sanctions,

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including without limitation the striking of the witness’s entire testimony.

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6. Jurors Issues:

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a. The Court will seat a total of eight (8) jurors and no alternates. The Court sets the

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number of peremptory challenges at four (4). Batson/Wheeler motions must be

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made in a timely fashion. Argument on the same shall be made outside the

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presence of the jury panel.
b. Per the Court's Standing Order, the Court will give Model Instructions 1.1B, 1.2,

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1.3 and/or 1.4, 1.6–1.12, 1.14–1.15, 1.19, and 3.1–3.3 from the Manual of Model

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United States District Court
Northern District of California

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Civil Jury Instructions for the Ninth Circuit (2007 Edition).

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c. Parties shall each be afforded 20 minutes to conduct additional voir dire of the jury
panel. Attached as Exhibit A hereto is the Juror Questionnaire.

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d. In accordance with Model Rule of Professional Conduct 3.5(b) and Formal Opinion

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for 466, the parties “may review a juror’s or potential juror’s Internet presence,

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which may include postings by the juror or potential juror in advance of and during

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the trial, but...may not communicate directly or through another with a juror or

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potential juror.” A party “may not, either personally or through another, send an

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access request to a juror's electronic social media. An access request is a

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communication to a juror asking the juror for information that the juror has not

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made public and that would not be the type of ex parte communication prohibited

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by Model Rule 3.5(b).”

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e. During voir dire counsel shall be allowed to use the bathrooms in the jury room so

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that you do not share the facilities with the jurors. You may not linger in the jury

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room or use any exit door other than the one leading to the courtroom.

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7. Trial Logistics and Limits
a. Opening Statements: Parties must meet and confer to exchange any visuals,
graphics or exhibits to be used in opening statements. Any objections not resolved
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after the parties have met and conferred may be raised before the Court in a filing

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not to exceed three pages. The parties are reminded that the purpose of an Opening

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Statement is not to argue the facts but to provide the jurors with an outline of what

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each side expects the evidence will show.

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b. Depositions to be Used at Trial: Any party intending to use a deposition
transcript at trial for any purpose shall lodge the signed original (or a

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certified/stipulated copy if, for any reason, the original is not available) for use by

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the Court and shall have extra copies available for use by him/herself and the

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witness, if necessary. All other parties are expected to have their own copies

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available. The parties shall each prepare and provide an index of the lodged

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Northern District of California

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transcripts and shall review the same with the courtroom deputy upon lodging the

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transcripts. Before each trial day, counsel shall confer with the courtroom deputy

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and identify which of the transcripts may be used that day.

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c. Video Depositions at Trial: The parties are to exchange designations and counter-

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designations for video depositions. Any objections not resolved by the parties after

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a meet and confer must be raised before the Court no later than August 14, 2015.

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A video deposition may only be shown after the designations, counter-designation

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and objections are resolved. A transcript of the portions played to the jury shall be

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provided to the court reporter on the same day as the portion is played. The court

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reporter shall be relieved of her duties to transcribe that portion of the trial.

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d. Demonstratives: The parties shall work out an agreed procedure with respect to

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exchanging proposed demonstratives and objecting to the same. If the procedure is

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memorialized in writing, the Court will enforce it.

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e. Witnesses at Trial: The party presenting evidence shall give the other party

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twenty-four (24) hours written notice of the witnesses to be called unless otherwise

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agreed upon by the parties themselves. The parties are admonished that use of trial

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time is critical given the limited resources of the Court. All parties must have

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witnesses ready and available to testify. If the party presenting evidence does not
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have a witness ready to be called once a prior witness steps down, that party may

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be deemed to have rested its case. Witnesses may be taken out of order upon

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stipulation or with leave of Court provided that the circumstances giving rise to

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such an accommodation are promptly called to the attention of opposing counsel

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and the Court.

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f. Objections: There shall be no “speaking objections,” and no rebuttal unless

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requested by the Court, in which case it shall be brief – e.g., “hearsay” and if a

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rebuttal requested, “Not offered for the truth.” If either counsel needs to make a

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better record, he/she may do so when the jury is out at the next break.

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g. Jury Questions: The Court allows jurors to ask questions during the trial. The

United States District Court
Northern District of California

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Court allows written jury questions which it will share with counsel at the break(s)

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and then place in the record.

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h. Requests for Transcripts: The parties should determine whether they will order

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daily transcripts of the trial, and if so, shall request such transcripts by no later than

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one month in advance.

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i. Juror Notebook: The parties shall meet and confer in developing a joint juror

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notebook. The Court will review the proposed juror notebook with the parties at

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the pretrial conference scheduled for August 21, 2015, and resolve any

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disagreements. Once approved, the parties shall provide sufficient notebooks for

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each juror, plus two. The Court will add its own cover page for the front of the

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notebook. The notebook should include the following components/tabs:

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1. An empty “sheet protector” in which the Court can insert a page with a
warning regarding use of social media and duties of jurors;

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2. Index;

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3. Loose leaf paper for note taking;

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4. Glossary of technical terms. The parties shall prepare a glossary to provide

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to the jury for their jury notebooks with respect to any technical terms

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and/or acronyms on which they can agree. The parties shall provide said

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glossary to the Court by August 14, 2015;

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5. Photographs of each witness. Each party will be responsible for taking a

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photograph of each witness testifying in its case in chief, outside the

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Courtroom immediately before the witness testifies. The witness’s

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appearance must be the same in the photograph on the witness stand (i.e.,

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same clothing, hairstyle, eyewear). At the time of trial, the parties shall

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provide the Courtroom Deputy with eleven (11) copies of each photograph,

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printed on three-hole-punched, 8 ½” x 11” paper. The photograph size
itself should be at least 4” by 6”. The Courtroom Deputy will distribute the

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United States District Court
Northern District of California

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photographs for placement in the juror binders.

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6. Color-coded handouts identifying the specific language of the claims which

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is at issue in the patents and its import to the action. See Docket No. 633 in

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Oracle America, Inc. v Google, 10-cv-3561-WHA, as an exemplar. The

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handouts should also include any constructions made by the Court or to

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which the parties have stipulated. Alternatively, a chart may be a better

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mechanism for communicating that particular information;

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7. A common timeline of events, if appropriate and useful;

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8. Copies of the patents (on double-sided paper). The copies of the patents
should highlight or box the claims at issue;

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9. A copy of the Patent Example referenced in the FJC video to be played to

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the jurors; and

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10. Final jury instructions (to be provided later)

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8. Procedural Stipulations: Attached hereto as Exhibit B is an outline of stipulations. To

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the extent agreed upon, the parties shall file said document by the Friday before the trial

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date.

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9. Trial Decorum and Procedure: Counsel, parties and witnesses are expected to conduct
themselves at all times – on or off the record and whether or not in the presence of a jury –
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in a professional and courteous manner during trial. Do NOT approach other parties’

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witnesses without permission. You may approach your own non-hostile witnesses without

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permission.

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10. Failure to Comply: Failure to comply with the obligations set forth in this Order will

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result in sanctions appropriate to the gravity of the failure, including, but not limited to

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monetary fines and/or terminating sanctions.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Date: April 29, 2015

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California
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Exhibit A

JUROR QUESTIONNAIRE
Please PRINT your answers.
To Be Completed by Jurors called to the Courtroom of the Hon. Yvonne Gonzalez Rogers for the Trial of:
PLAINTIFF v. DEFENDANT
Case Number: Year-cv-Number YGR
Name: ______________________________________________ Age: ______

Birthplace:_______________

Residence: ________________________ Years_______ Prior Residence: ________________ Years:_______
Education: Highest Grade Completed: __________________

Degrees_____________________________

College/Vocational Schools attended_________________________ Areas of Study_______________________
________________________________________________________________________________________
Current Occupation/Position: ___________________________ Employer/Length of Service_______________
Prior Occupation/Position: ______________________________ Employer/Length of Service_______________
Have you ever served as a Supervisor? If yes, describe and state how many people your supervised:
________________________________________________________________________________________
Current Status (Circle): Single (living alone/with others)

Married

Separated

Divorced

Widowed

Occupation & Employer of Adults Living in the Same Household: ____________________________________
________________________________________________________________________________________
Children: Age(s) ________________________ Occupation(s) if employed_____________________________
________________________________________________________________________________________
Is English your first language? YES

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NO

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IF NO, do you use it regularly at work or home? YES

□ NO □

Do You OR any CLOSE Family/Friends have Military Service or Law Enforcement Training? Circle: YES NO
If yes, describe_____________________________________________________________________________
Have You Every Served on Jury? Circle: YES NO

Number of times: ______ Date(s) of Service: _________

Circle:

Circle: Civil Case

State Court Federal Court Both

Did each jury reach a verdict? YES

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NO

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Criminal Case

Both

Have you ever served as Foreperson? YES

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NO

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Circle if You Know or Are Familiar With Any of the Following Persons: [to be provided]
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING INFORMATION IS TRUE AND CORRECT.
SIGNATURE: _________________________________________

DATE: _____________________________

United States District Court
Northern District of California
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Exhibit B

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANGIOSCORE, INC.,

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Plaintiff,

CASE NO.: 12-CV-03393 YGR
PROCEDURAL STIPULATIONS
(EXHIBIT B TO PRETRIAL ORDER)

v.
TRIREME MEDICAL, INC., ET AL.,

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Defendants.

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United States District Court
Northern District of California

PLEASE INITIAL AND SIGN as acceptable:
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It is stipulated that the Defendant will be deemed present with counsel, and each of the jurors will
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be deemed present, upon reconvening after each adjournment or recess, unless the contrary is
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noted for the record.
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For the Plaintiff ______________

For the Defendant _____________

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It is stipulated that the Jury Instructions and the Exhibits may go into the Jury Room during
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deliberations.
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For the Plaintiff ______________

For the Defendant _____________

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It is stipulated that the parties need not be present when, during jury deliberations, the jurors are
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excused for lunch, return for lunch, and/or are discharged in the evening and resume in the
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morning.
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For the Plaintiff ______________
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For the Defendant _______________

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It is stipulated that, during jury deliberations, the jury may recess without further admonition and

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without assembling in the jury box, and that they may resume their deliberations upon the Deputy

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Clerk’s determination that all jurors are present.

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For the Plaintiff ______________

For the Defendant _____________

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In the absence if the trial judge, any judge of this court may receive the verdict.
For the Plaintiff ______________

For the Defendant ________________

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(Party Name) ______________________

(Party Name) _________________________

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__________________________________

________________________________

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Signature (Plaintiff’s Attorney)

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United States District Court
Northern District of California

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Signature (Defense Attorney)