Fujitsu Limited v. Belkin International, Inc. et al

Filing 430

PRETRIAL ORDER. Signed by Judge Lucy H. Koh on 11/25/12. (lhklc3, COURT STAFF) (Filed on 11/25/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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FUJITSU LIMITED,

)
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Plaintiff,
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v.
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BELKIN INTERNATIONAL, INC.; BELKIN, )
INC.; D-LINK CORPORATION; D-LINK
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SYSTEMS, INC.; NETGEAR, INC.; ZYXEL )
COMMUNICATIONS CORPORATION; and )
ZYXEL COMMUNICATIONS, INC.,
)
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Defendants.
)

Case No.: 10-CV-03972-LHK

PRETRIAL ORDER AND RULING ON
OPENING STATEMENT OBJECTIONS

A pretrial conference was held on November 1, 2012, at 2:00 p.m. An additional pretrial
hearing was held on November 20, 2012, at 3:00 p.m. Trial is set to begin on Monday, November
26, 2012, at 9:00 a.m., and is scheduled to last ten days. On Monday, November 26, 2012, the
parties shall convene in Courtroom 8 at 8:45 a.m., rather than at 8:30 a.m. In order to limit the
issues that need to be addressed prior to the beginning of trial, the Court issues the following
rulings:
VOIR DIRE:
 To facilitate voir dire, the parties were ordered to bring to the Court’s Chambers thirty-five
(35) printed copies of their joint list of companies, attorneys, law firms, and witnesses
involved in this case for the prospective jurors to use in identifying potential relationships
and conflicts. ECF No. 391. Those copies were not received. Accordingly, the parties are
ordered to bring thirty-five (35) printed, stapled copies of these lists to Courtroom 8 by 8:45
a.m. on Monday, November 26, 2012.

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PRELIMINARY JURY INSTRUCTIONS:
 The parties shall bring twelve (12) copies of the final preliminary jury instructions, filed by
the Court at ECF No. 428, to Courtroom 8 by 8:45 a.m. on Monday, November 26, 2012.
These photocopies shall be 3-hole punched, double-sided, collated, and stapled. The parties
shall insert the photocopies in the Jury Binders at 8:30 a.m. on Monday, November 26,
2012.

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TOLLING AGREEMENT:
 On November 21, 2012, the parties filed an updated joint status report regarding negotiation
of a tolling agreement. See ECF No. 401. The parties continue to disagree about the final
language to be included in the tolling agreement. After reviewing the parties’ joint status
report, the Court declines Fujitsu’s request to strike from the proposed tolling agreement the
sentence which states: “If discovery is reopened for any claim subject to this Tolling
Agreement, the tolling provisions of this Agreement shall not apply to such claim.”
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Case No: 10-CV-03972-LHK
PRETRIAL ORDER AND RULING ON OPENING STATEMENT OBJECTIONS

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Accordingly, the Court adopts the proposal submitted by Defendants at ECF No. 401-2.
The parties shall file a final tolling agreement on Monday, November 26, 2012.
EVIDENTIARY OBJECTIONS:
 The parties shall number all demonstrative slides to facilitate briefing and ruling on
objections.
OBJECTIONS TO DEMONSTRATIVES TO BE USED IN THE PARTIES’ OPENING
STATEMENTS:
After reviewing the parties’ briefing, considering the record in the case, and balancing the
considerations set forth in Federal Rule of Evidence (“FRE”) 403, the Court rules on the parties’
objections as follows:
A. Defendants’ Objections to Fujitsu’s November 26, 2012 Demonstratives

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United States District Court
For the Northern District of California

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Demonstrative
Opening Slide 6

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Opening Slide 21

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Opening Slide 22

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Opening Slide 23

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Opening Slides 24–
28 and 46–47

Court’s Ruling on Objections
Sustained. Pursuant to FRE 403, the probative value of this slide is
outweighed by the danger of misleading the jury, confusing the issues, and
causing unfair prejudice.
Overruled. Defendants object to Fujitsu’s Slide 21 on the basis of FRE
106, 403, 802, and 901. However, the parties have already stipulated to
admitting the underlying document, PTX-126, into evidence “without
restriction.” See ECF No. 423. Therefore, Fujitsu is entitled to state what it
reasonably believes that the evidence will show. To the extent that
Defendants believe this slide is incomplete, Defendants may use other
portions of the exhibit during their opening statement or during trial. See
generally United States v. Greene, 497 F.2d 1068, 1082 (7th Cir. 1974)
(noting that “the evidentiary rule of completeness . . . applies to documents
. . . admitted into evidence.”).
Overruled in part, sustained in part. The Court finds that Defendants’
revenue from the time period between July 2000 and September 2004 is
relevant to a reasonable royalty analysis as well as to secondary
considerations of non-obviousness. However, the Court agrees with
Defendants that the slide’s depiction of data based on sales of accused
products that are not in this trial and based on sales for a time period in
which damages cannot be awarded (July 2000 – September 2004) may
mislead the jury, confuse the issues, and waste time. Thus, this slide is
more prejudicial than probative. Therefore, pursuant to FRE 403, this slide
must be modified to identify which revenues are for accused products in
this trial during time periods for which damages may be awarded.
Overruled. The deposition excerpt in this slide consists of a full question
and answer. To the extent that Defendants believe this slide is incomplete
or misleading, Defendants may seek to use other portions of the deposition
transcript or excerpts from the second deposition during Defendants’
opening statement or during trial. See generally Greene, 497 F.2d at 1082.
Overruled. Defendants do not object to the admission of the underlying
documents but argue that, under the Rule of Completeness, the balance of
the documents must come in to explain the portions that Fujitsu has taken

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Case No: 10-CV-03972-LHK
PRETRIAL ORDER AND RULING ON OPENING STATEMENT OBJECTIONS

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out of context. However, as noted previously, “the evidentiary rule of
completeness . . . applies to documents . . . admitted into evidence.” See
Greene, 497 F.2d at 1082. As “opening statements themselves are not
evidence,” Testa v. Village of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir.
1996), this is not a sufficient justification to introduce counter-slides during
Fujitsu’s opening statement. Moreover, as the parties have already
stipulated to admitting the underlying documents—PTX 27, PTX 283, PTX
284, and DTX 433—into evidence “without restriction,” the Court does not
find that displaying these slides during Fujitsu’s opening argument will
prove more prejudicial than probative.

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B. Fujitsu’s Objections to Defendants’ November 26, 2012 Demonstratives
Demonstrative
Defendants’ Slides
3–5, 8–9, 26–27, 34–
35, 51–53, 69–70

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Defendants’ Slides
73–76

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Defendants’ Slides
43–50 and 67–68

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Slide 18, an ARLAN
manual

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Court’s Ruling on Objections
Overruled in part, sustained in part. The Court sustains Fujitsu’s objections
to Defendants’ Slides 8, 26–27, 51–53, and 69–70, as the slides are unduly
argumentative and could mislead the jury. See U.S. v. Dinitz, 424 U.S. 600,
612 (1976) (Burger, C.J., concurring). In addition, the Court finds that
Defendants’ slides 34–35 are redundant, and would therefore cause undue
delay and waste time. Therefore, pursuant to FRE 403, the Court finds that
these slides should be excluded. The Court overrules Fujitsu’s objections
as to Slides 3–5 and 9 pursuant to FRE 403.
Overruled in part, sustained in part. Fujitsu argues that these slides violate
the Court’s ruling on Fujitsu’s Motion in Limine #2, which prohibits
Defendants from using evidence of the cancellation of claims to dispute the
validity of the asserted claims. The Court agrees that Defendants’ Slides 73
and 74 relate to disproving validity, and should therefore be excluded from
Defendants’ opening statement. However, the Court overrules Fujitsu’s
objections to Slides 75 and 76 as they may be used to support Defendants’
defense to willfulness.
Overruled. Fujitsu objects to Defendants’ Slides 43–50 and 67–68 to the
extent that they refer to the PTO finding a “substantial new question of
patentability” in granting the reexamination requests. Given the extent to
which Fujitsu seeks to rely on the reexamination process in its opening
statement, the Court does not find the Defendants’ references to the
standard for reexamination unduly prejudicial.
Sustained. Defendants do not dispute that they failed to disclose the
document in their invalidity contentions. While Fujitsu should have raised
its objection to this document at the pretrial conference held on November
20, 2012, the Court finds this document must be excluded under the Court’s
prior ruling on Fujitsu’s motion in Limine #5(d).

IT IS SO ORDERED.
Dated: November 25, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No: 10-CV-03972-LHK
PRETRIAL ORDER AND RULING ON OPENING STATEMENT OBJECTIONS