Evolved Wireless, LLC v. Apple, Inc.

Filing 490

MEMORANDUM AND ORDER. Signed by Judge Joseph F. Bataillon on 3/7/2019. Associated Cases: 1:15-cv-00542-JFB-SRF, 1:15-cv-00545-JFB-SRF(nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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APPLE INC.,
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Defendant.
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______________________________________
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Plaintiff,
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V.
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HTC CORPORATION and
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HTC AMERJCA, INC.,
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Defendants.
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______________________________________

Civil Action No. 15-542-JFB-SRF

EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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LENOVO GROUP LTD., LENOVO
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(UNITED STATES) INC., and
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MOTOROLA MOBILITY,
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Defendants.
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______________________________________

Civil Action No. 15-543-JFB-SRF

EVOLVED WIRELESS, LLC,

EVOLVED WIRELESS, LLC,

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Plaintiff,
V.
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Civil Action No. 15-544-JFB-SRF

Civil Action No. 15-545-JFB-SRF

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SAMSUNG ELECTRONICS CO., LTD.
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and SAMSUNG ELECTRONICS
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AMERICA, INC.
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Defendants.
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_____________________________________ )
EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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ZTE (USA) INC.,
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Defendant.
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_____________________________________ )
EVOLVED WIRELESS, LLC,

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Plaintiff,
V.
MICROSOFT CORPORATION,
MICROSOFT MOBILE OY and
NOKIA INC.,
Defendants.

Civil Action No. 15-546-JFB-SRF

Civil Action No. 15-547-JFB-SRF

MEMORANDUM AND ORDER
This matter is before the Court on the following motions in limine: defendant Apple
Inc.’s (“Apple”) motion in Limine No. 1 to exclude irrelevant and prejudicial unrelated
matters involving Apple (D.I. 409 in 1:15cv542); defendants Apple Inc.’s, Samsung
Electronics America Inc.’s, and Samsung Electronics Co. Ltd.’s (“Samsung”) joint motion

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in limine (D.I. 411 in Evolved Wireless, LLC (“Evolved”) v. Apple, 1:15cv542 and D.I. 403
in Evolved v. Samsung, 1:15cv545); and plaintiff Evolved’s motion in limine (D.I. 415).1
I.

LAW
Although the motion in limine is an important tool available to the trial judge to

ensure the expeditious and evenhanded management of the trial proceedings, performing
a gatekeeping function and sharpening the focus for later trial proceedings, some
evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge
in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115
F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for “evidentiary

submissions that clearly ought not be presented to the jury because they clearly would
be inadmissible for any purpose.” Id. In other instances, it is necessary to defer ruling
until during trial, when the trial judge can better estimate the impact of the evidence. Id.
“Evidentiary rulings made by a trial court during motions in limine are preliminary
and may change depending on what actually happens at trial.” Walzer v. St. Joseph State
Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000); see also Leonard v. Stemtech Health Scis.,
Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013) (noting that evidentiary rulings, especially
those that encompass broad classes of evidence, should generally be deferred until trial
to allow for the resolution of questions of foundation, relevancy, and potential prejudice in
proper context).
II.

DISCUSSION
A.

Apple’s Motion in Limine To Exclude Irrelevant and Prejudicial Unrelated
Matters Involving Apple (D.I. 409)

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All docket items (“D.I.”) refer to Civil Action No. 15-542-JFB-SRF unless otherwise stated.

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Apple seeks exclusion of evidence of alleged past misconduct and the alleged poor
character of Apple or Steve Jobs as irrelevant and unfairly prejudicial. Defendants state
that Apple’s motion is specific to an exhibit produced in this litigation—an excerpt of a
PBS documentary titled “Triumph of the Nerds” featuring Apple’s co-founder Steve Jobs.
In the documentary, Mr. Jobs states that “[Apple] ha[s] always been shameless about
stealing great ideas.”

Apple also seeks exclusion of prior unrelated litigations,

investigations or accusations involving Apple or Mr. Jobs, arguing the evidence is
irrelevant, unfairly prejudicial and may confuse the jury. The court grants the defendant’s
motion in limine to the PBS documentary excerpt.
Regarding other unspecified evidence characterized as “Apple-bashing,”
evidentiary rulings “that encompass broad classes of evidence should generally be
deferred until trial to allow for the resolution of questions of foundation, relevancy, and
potential prejudice in proper context.” Hologic, No. 15-1031-JFB-SRF, D.I. 452 at 1.
Apple’s failure to specify the evidence or testimony to be excluded means deny without
prejudice to reassertion.
In regards of reputation for litigiousness – it

will be necessary to introduce

evidence of Apple’s prior litigation to explain the risk-adjusted purchase price, as
contemplated by Dr. Putnam. That risk included the possibility that Evolved Wireless
would be unable to license the asserted patents to Apple absent a finding of infringement
and validity following lengthy and costly litigation.

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III.

DEFENDANTS' JOINT MOTION IN LIMINE (D.I. 411)
A.

Motion In Limine No. 1: To Preclude Evolved From Offering
Evidence Regarding How Evolved Arrived At Its $0.25 Per-Device
Figure

Defendants seek an order precluding Evolved from offering evidence as to the
derivation of its $0.25 royalty rate in pre-suit licensing negotiations. This topic was the
subject of a motion to compel and two Federal Rule of Civil Procedure 30(b)(6)
depositions. Defendants contend Evolved’s two designated witnesses provided no or
limited meaningful information about Evolved’s derivation of the $0.25 figure. Evolved
asserted privilege as to much of the information about a previously-undisclosed,
purported “starting-point rate.” The record shows the defendants moved to compel
answers after the first 30(b)(6) deposition and the magistrate judge granted the motion.
Evolved designated a different 30(b)(6) witness in response to the magistrate judge’s
order. The defendants contend that the second witness gave a few limited answers
beyond what the first witness had provided, but still failed to provide adequate testimony
on the issue of the $0.25 figure. Defendants argue that Evolved again asserted privilege
and work product instructions to selectively shield from discovery most aspects of
Evolved’s formulation of the amount. Defendants also deposed Matt DelGiorno, counsel
for Evolved who had engaged in the pre-suit negotiations with the defendants, but he too
refused to answer numerous questions regarding the $0.25 figure. There is no indication
that the defendants moved to compel after the second 30(b)(6) deposition DelGiorno
deposition.

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In response, Evolved states it will not offer or rely on privileged communications.
Also, it argues the defendants’ motion should be denied for failing to specifically identify
the evidence they seek to exclude.
The Court finds Evolved’s statement, that it will not elicit testimony or present
evidence on the challenged topic essentially renders the defendants’ motion, moot.
Evolved Wireless should be permitted to testify as to non-privileged information consistent
with the deposition testimony and evidence already given in this case. The defendant’s
argument for a more expansive order of preclusion is unavailing because the defendants
failed to move to compel at the time or to challenge the assertions of privilege. Without
knowing specifically what the evidence is and what it is proffered for, the Court cannot
make a determination as to the precise parameters of the admission of this evidence, if
any. Accordingly, the motion will be denied at this time, without prejudice to reassertion
at trial.
B.

Motion In Limine No. 2: Preclude Dr. Cooklev and Evolved From
Arguments, Evidence, and Testimony Regarding Infringement Under
the Doctrine of Equivalents

The defendants assert that Evolved did not articulate a theory of infringement
under the Doctrine of Equivalents (“DOE”) during fifteen months of fact discovery and two
rounds of infringement contentions other than to state that the defendants infringe “either
by literal infringement or infringement under the doctrine of equivalents” in their final
infringement contentions. It asserts that Evolved for the first time asserted a DOE theory
for the “dedicated preamble” limitation of U.S. Patent No. 7,809,373 (“the ‘373 Patent”) in
the Infringement Report of Dr. Todor Cooklev (“Cooklev Report”) on May 22, 2017—more

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than a month after the close of fact discovery and nearly three months after Defendants
had served their Final Invalidity Contentions.
In response, Evolved contends that consistent with its Final Infringement
Contentions, Evolved Wireless included an express, substantial analysis of DOE
infringement in Dr. Cooklev’s opening expert report, and the defendants’ experts rebutted
Dr. Cooklev’s analysis in their responsive reports. Also, the defendants also deposed Dr.
Cooklev on this issue.
This issue is addressed in the Court’s order on the defendants’ motion for a
summary judgment of noninfringement. The Court finds Evolved sufficiently put the
defendants on notice of its theories of infringement under the doctrine of equivalents. The
defendants have not demonstrated prejudice as a result of any untimely disclosure. The
Court finds the defendants’ motion to preclude argument and evidence on the theory
should be denied.
C.

Motion In Limine No. 3: To Exclude Any Testimony Regarding
Evidence of, or Reference to, the PTAB’S Decision Not to Institute
IPR Proceedings against the ’373 Patent

Defendants expect Evolved to reference the Patent Trial and Appeal Board’s
(“PTAB”) decision not to institute inter partes review (“IPR”) proceedings against the
’373 patent as evidence of validity of the ’373 patent. The Court should exclude any
reference to the PTAB decisions regarding the ’373 patent because it is not relevant.
Evolved contends the fact the PTAB declined to institute IPR proceedings—a
finding that the defendants failed to demonstrate a reasonable likelihood of invalidity
under the lower standard applied by the PTAB is highly probative of validity and should
be heard by the jury. It also argues the evidence is relevant to willfulness.

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Because willfulness is no longer at issue Evolved’s argument that the IPR denial
is relevant to intent and state of mind is unavailing. Generally, the Court is inclined to find
that because the patent office’s proceeding and decision are not binding and are on
appeal, the prejudicial and confusing effect of the evidence almost certainly outweighs
any probative value, at least with respect to the merits. The denial to institute proceedings
has no estoppel effect and the minimal probative value it may have to the validity issue is
substantially outweighed by the potential for prejudice and confusion to the jury.
Accordingly, the Court finds the defendants’ motion in limine should be granted.
D.

Motion In Limine No. 4: Exclude Any Testimony Or Declarations
From Any LG Electronics Witness

The defendants move to preclude certain evidence that relates to the 1993
licensing agreement as amended between LGE and Qualcomm that is the subject to the
Court’s memorandum and order on affirmative defenses. The defendants argue it should
be precluded in light of Evolved’s alleged failure to produce the agreements and Evolved
argues that if the Court allows the defendants to present parol evidence regarding the
agreements, the Court should allow LGE’s testimony to rebut Defendants’ flawed theory
that they are entitled to a covenant not to sue on the ’373 patent.
The Court finds the motion is premature at this time as it relates to issues that will
be determined by the Court at a bench trial following the trial to the jury of infringement
and invalidity issues.
E.

Motion In Limine No. 5: To Exclude Irrelevant Evidence of Financial
Resources and Size, as Well as Unfairly Prejudicial Dollar Amounts
of Sales of Accused Products

Defendants seek to exclude information that relates to the defendants’ net worth,
revenues, and market capitalization. They contend such evidence is largely irrelevant
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and its probative value is outweighed by the danger of prejudice to the defendants.
Evolved contends that the defendants’ financial information, such as relative size,
net worth, volume of sales, and market capitalization, are factors that would have been
relevant to the parties at any hypothetical negotiation. Moreover, such information is
relevant to calculating a lump sum royalty, which the defendants contend is an
appropriate damages award. Evolved states it will not seek to introduce evidence of the
defendants’ total profits or revenue, unless the defendants open the door by arguing for
a lump sum damages award.
The Court is inclined to agree with the defendants that the probative value of the
evidence is outweighed by the danger that the jury might set damages on ability to pay
rather than proper evidence of damages. The dismissal of the willfulness claim lessens
the probative value of the evidence. That said, the evidence may be relevant to issues
relating to the hypothetical negotiation, depending on the expert testimony. However,
without a full record before it, the Court is unable to evaluate the merit of the defendants’
motion in the context. The motion will nevertheless be granted at this time, but the court
may reconsider the motion on an appropriate showing of foundation and relevance, as
balanced against prejudice.
F.

Motion In Limine No. 6: Preclude Evolved from Relying on
Documents Produced and Fact Testimony Disclosed More Than a
Year after the Close of Fact Discovery

Defendants move to preclude Evolved from relying on any documents that Evolved
produced more than a year after discovery closed. A certification document signed by J.
Brad Berkshire is related to this motion and is the subject of an issue identified as an
additional matter in the parties proposed pretrial order. D.I. 448, Proposed Pretrial Order
at 36. Apple contends Berkshire was not identified in Evolved’s fact witness disclosure
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served on September 25, 2017 but was included in the trial witness list attached to the
Proposed Pretrial Order. Id. at Ex. 8.
In response, Evolved states that Mr. Berkshire’s testimony would be limited to
authenticating some of the documents that are the subject of Apple’s Motion in Limine
No. 6. If Apple is willing to stipulate to the authenticity of such documents, without waiving
its other objections, then Evolved Wireless would withdraw Mr. Berkshire as a witness.
Evolved argues the defendants’ position fails to acknowledge Evolved’s continuing
duty to supplement discovery under the Federal Rules and misapplies the Third Circuit’s
“Pennypack factors” to determine prejudice. It argues that the defendants have taken no
efforts to cure any prejudice occasioned by the allegedly tardy disclosure in the time since
the supplemental disclosure.
It appears to the Court that this motion may be mooted by proceedings presently
pending before the Magistrate Judge on various discovery issues. The Court cannot
define the relevance of the challenged evidence to the remaining issues in the litigation
in the context of a pretrial motion. Further, the Court is unable to assess the relative
levels of gamesmanship that may have occurred with respect to this disputed evidence.
Accordingly, the motion will be denied at this time without prejudice to reassertion at trial.
The evidence will not be admitted absent a showing of proper foundation and relevance.
IV.

PLAINTIFF EVOLVED WIRELESS, LLC’S (“EVOLVED”) MOTION IN LIMINE
(D.I. 415)
A.

Motion in Limine No. 1: To Exclude Evidence and Argument
Related to Sales of Unaccused Products or Accused Products
Outside the United States

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Evolved moves to preclude the defendants’ experts from relying on third-party
forecasted worldwide sales data for products compatible with LTE networks, arguing that
certain of their opinions should thereby be precluded.
In response, the defendants argue that Evolved’s motion is based on an erroneous
assumption. They state their experts’ opinions on damages for alleged infringement of
the patents-in-suit are properly based only on actual domestic sales of accused products.
The defendants agree with Evolved that it is statutorily limited to recovering damages only
for infringement that occurs in the United States and that concerns the accused products.
It also states, however, that the evidence Evolved seeks to preclude relates solely to the
defendants’ experts’ opinions concerning the affirmative defenses and counterclaims of
breached of the FRAND commitment.
The defendants’ concession as to opinions on infringement damages makes the
motion effectively moot. To the extent the parties’ dispute these issues with respect to
breach of FRAND agreement damages, the Court finds the motion is premature at this
time. The breach of FRAND obligation issue will be tried to the Court at, or after, the
conclusion of the jury trial and the court will address the motion at that time.
B.

Motion in Limine No. 2: To Exclude Evidence and Argument Related
to Alleged Royalty Stacking

Evolved moves to exclude evidence and argument related to any alleged “royalty
stack,” contending that the defendants have not presented specific evidence to support
an argument that they are actually faced with a royalty stack problem. It argues that under
controlling Federal Circuit precedent, evidence or argument regarding a royalty stack is
irrelevant and should be excluded. See Ericsson, Inc. v. D-Link Sys., 773 F.3d 1201,
1234 (Fed. Cir. 2014) (“The district court need not instruct the jury on hold-up or stacking
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unless the accused infringer presents actual evidence of hold-up or stacking. Certainly,
something more than a general argument that these phenomena are possibilities is
necessary”).
In response, the defendants argue that the plaintiff’s motion is a Daubert motion
masquerading as a motion in limine. The defendants argue their experts discuss royalty
stacking only as context for the hypothetical negotiation, not as the basis for any particular
royalty.
The Court finds the Evolved’s motion is largely mooted by the Court’s ruling on the
parties’ Daubert motions. To the extent the motion has any merit, Evolved’s concerns
can be a matter for cross-examination, appropriate objection at trial and limiting or
cautionary instructions. The Court will instruct the jury on stacking only if there is actual
evidence that supports such an instruction. Accordingly, the motion will be denied at this
time without prejudice to reassertion.
C.

Motion in Limine No. 3:
To Exclude Evidence and Argument
Related to Defendants Being “Locked-In” or to “Patent Hold-Up”

Evolved moves to exclude evidence and argument that it purportedly seeks to
extort an unreasonable royalty from the defendants by virtue of their being “locked in” to
complying with the LTE standard—a theory referred to by the defendants and their
experts as “patent hold up.” Evolved contends that the defendants have not presented
any evidence to support being “locked in” or to support an allegation of patent “hold up.”
The defendants again charge that the plaintiff asserts an improper Daubert motion
in the guise of a motion in limine. They contend that courts have recognized that these
concepts are important to consider in cases involving SEP patents because the trier-offact must separate the value of the asserted patent from the value of the technology
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standard when calculating an appropriate FRAND rate. See, e.g., In re Innovatio IP
Ventures, LLC Patent Litig., C.A. No. 11 C 9308, 2013 WL 5593609, at *9 (N.D. Ill. Oct.
3, 2013) (“The court’s RAND rate therefore must, to the extent possible, reflect only the
value of the underlying technology and not the hold-up value of standardization”);
Microsoft Corp. v. Motorola, Inc., C.A. No. C10-1823JLR, 2013 WL 2111217, at *12 (W.D.
Wash. Apr. 25, 2013) (“In the context of a dispute concerning whether or not a given
royalty is RAND, a proper methodology used to determine a RAND royalty should
therefore recognize and seek to mitigate the risk of patent hold-up that RAND
commitments are intended to avoid”).
The Court addressed this issue in connection with ruling on the parties’ Daubert
motions. The Court found generally that the challenges to the testimony went to the
weight and not the admissibility. Accordingly, the Court finds the motion should be denied
as moot. Evolved has not shown that categorical exclusion of such evidence or argument
is appropriate. Accordingly, the motion will be denied.
D.

Motion in Limine No. 4: To Exclude Evidence and Argument Related
to a Lump Sum Damages Award that would Provide Unfettered
Rights to Practice the Asserted Patents

Evolved contends evidence involving lump sum licenses covering all future sales
of LTE compliant, and therefore infringing, products is highly speculative and would
confuse and mislead the jury and moves to exclude it under Federal Rule of Evidence
403. It asserts that the defendants’ experts opine that the preferences of the parties at a
hypothetical negotiation would have been to negotiate a lump sum agreement, where that
lump sum agreement would give Defendants freedom to operate for the life of the patents.
The defendants again assert that Evolved is unabashedly raising a Daubert
motion. The Court agrees and finds the issues were resolved in the ruling on the parties’
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Daubert motions. Further, the defendants again assert that the plaintiff’s objections to
consideration of product sales outside the United States are based on a
misunderstanding of the defendants’ experts’ positions. The Court finds Evolved’s motion
should be denied.
E.

Motion in Limine No. 5: To Exclude Evidence and Argument Related
to a Potential Injunction

The fact that Evolved has sought injunctive relief against Defendants is central to
Defendants’ counterclaims and affirmative defenses that Evolved breached its
contractual FRAND obligation. That evidence is relevant to issues that will be tried to the
court. Accordingly, the motion will be granted at this time.
F.

Motion in Limine No. 6: To Exclude Evidence and Argument Related
to Patent Trial and Appeal Board Final Written Decisions

This issue is relevant only to issues that will be argued to the Court. The matter is
addressed in the Court’s earlier order. Injunctive relief is an equitable remedy and is
irrelevant to issues before the jury. The nature and extent of its relevance to breach of
FRAND issues can be addressed at a later time, in conjunction with the bench trial.
Accordingly, the Court finds Evolved’s motion should be granted with respect to
proceedings before the jury and denied without prejudice to reassertion in the bench trial.
G.

Motion in Limine No. 7: To Exclude Redacted Versions of any
LGE/Qualcomm Agreements

This matter is relevant only to issues that will be tried to the Court. The Court finds
the motion should be granted with respect to the jury trial and denied as premature as to
the bench trial.

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H.

Motion in Limine No. 8: To Exclude Evidence and Argument Related
to U.S. Patent No. 8,219,097

This relates to the issue of the “dedicated preamble” language. The Court has
declined to amend or to perform additional claim construction. The Court is inclined to
believe that the ‘097 patent is a red herring and should be excluded as irrelevant. The
Court also agrees that any relevance is outweighed by potential confusion. Nevertheless,
it is difficult to rule on the motion in a pretrial motion. The Court addressed the issue in
other orders and finds the motion in limine should be denied at this time without prejudice
to reassertion regarding evidence that is in conformity with the court’s claim construction.
I.

Motion in Limine No. 9: To Exclude any Non-Produced Evidence
and Argument Regarding Licenses or License Negotiations

This motion also relates to issues that will be tried to the Court. It will be granted
with respect to the jury trial and denied as premature in connection with the bench trial.
The motion is also related to the submission of additional evidence regarding the licensing
agreements that can be taken up at a later date.
J.

Motion in Limine No. 10: To Exclude Evidence and Argument
Related to Defendants’ Own Specific Patents Related to LTE
Technology

Evolved contends that evidence of the defendant’s own specific LTE patents is
irrelevant to any issues the jury is to decide in these cases. Also, it asserts that even if
there is any probative value, the risk of misleading the jury and unfairly prejudicing
Evolved Wireless substantially outweighs the probative value of Defendants’ patents—
none of which are asserted as prior art in these cases.
Defendants contend they are not asserting that their ownership of LTE patents is
relevant to infringement or validity, but they argue that their ownership of LTE patents that
relate to Evolved patents is directly relevant to damages to rebut any suggestion that the
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patents-in-suit cover a large portion of the LTE patent space, such as handovers, leading
the jury to overvalue the patents, or to rebut any suggestion that Evolved’s patents cover
all or most of the LTE handover field.
The existence of one’s own patent is not a defense to infringement. It is irrelevant
to the issue of infringement. Whether it may be relevant to rebut certain damages
evidence depends on the evidence adduced at trial. The Court cannot make that
determination at this time.

The evidence would almost certainly warrant a limiting

instruction, but the Court cannot determine the ambit of any such instruction at this time.
Accordingly, the Court finds the motion should be denied at this time, without prejudice to
reassertion.
K.

Motion in Limine No. 11: To Exclude Evidence and Argument that
Qualcomm Is or Should Be the Correct Defendant

In its motion, Evolved asks the Court to exclude evidence and argument that
Qualcomm is the proper defendant in these cases, that Evolved Wireless should have
accused Qualcomm of infringing the patents-in-suit, or that Qualcomm’s patents insulate
Defendants from liability. The evidence and argument that Evolved seeks to preclude
goes to issues of affirmative defenses that are to be tried to the Court. This evidence is
not relevant to this issues for the jury. The court will grant the motion as it relates to the
jury trial.
L.

Motion in Limine No. 12: To Exclude Evidence and Argument
Referring to Evolved Wireless with Pejorative, Derogative, or
Negative Terms.

The defendants do not oppose this motion as it pertains to truly pejorative terms
like “troll,” “patent troll,” or “playing the litigation lottery.” They contend, however, that they
should not be precluded from using neutral terms like “non-practicing entity.” The Court
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agrees with defendant’s concession. The motion is granted as it relates to pejorative
terms but not for neutral terms.
M.

Motion in Limine 13: To Exclude Evidence and Argument Related to
Damages Allegedly Suffered as a Result of Evolved Wireless’s
Alleged Breach of “FRAND” Obligations.

This motion relates to matters that are to be tried to the Court. It will be granted
as to the jury trial and denied as premature in connection with the bench trial.
IT IS ORDERED:
1.

Defendant Apple Inc.’s (“Apple”) motion in Limine No. 1 to

Exclude

Irrelevant and Prejudicial Unrelated Matters Involving Apple (D.I. 409) is granted in part
and denied in part as set forth in this memorandum and order.
2.

Apple’s Joint motion in limine (D.I. 411) is granted in part and denied in part

as set forth in this memorandum and order.
3.

Plaintiff Evolved Wireless, LLC’s (“Evolved”) motion in limine (D.I. 415) is

granted in part and denied in part as set forth in this memorandum and order.
DATED this 7th day of March, 2019.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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