Exmark Manufacturing Company Inc. v. Briggs & Stratton Power Product Group

Filing 565

MEMORANDUM AND ORDER - IT IS ORDERED: Exmark's Motion in Limine No. 1 to Preclude Defendant from Presenting Improper Arguments, Evidence, and Testimony Related to Claim Construction (Filing No. 484 ) is denied as moot. Exmark's Motion in Limine No. 2 to Preclude Defendant from Presenting Arguments, Evidence, and Testimony Regarding Equitable Defenses (Filing No. 482 is granted. Exmark's Motion in Limine No. 3 to Preclude Defendant from Presenting Arguments, Evidence, an d Testimony Regarding Issues Over Which it has Claimed Privilege (Filing No. 485 ) is granted as set forth above. Exmarks Motion in Limine No. 4 to Exclude Testimony and Argument Regarding Patent Invalidity and to Exclude Irrelevant Prior Art (Fi ling No. 496 ) is granted in part and denied in part without prejudice to reassertion at trial Exmark's Motion in Limine No. 5 to Exclude Testimony and Argument Regarding Briggs's Rejected Non-Infringement Argument (Filing No. 498 ) is granted. Exmark's Motion in Limine No. 6 to Preclude Defendant from Presenting Improper Evidence and Arguments Related to Third Party Mowers (Filing No. 500 ) is granted. Exmark's Motion in Limine No. 7 to Preclude Defendant from Pre senting Evidence and Arguments Related to U.S. Patent No. 6,848,246 to Samejima (Filing No. 502 ) is denied, without prejudice to reassertion. Exmark's Motion in Limine No. 8 is deferred. Briggs and Stratton Power Products Group, LLC's (hereinafter Brigg's) Motions in Limine Nos. 1 to 14 (Filing No. 491 ) are denied. Briggs's Motion in Limine Nos. 3, 4, 7, and 9-13 are denied as moot. Briggs's Motion in Limine to Use Depositions at Trial is deferred. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EXMARK MANUFACTURING COMPANY
INC.,
8:10CV187
Plaintiff,
vs.

MEMORANDUM AND ORDER

BRIGGS & STRATTON POWER
PRODUCTS GROUP, LLC,
Defendant.

This matter is before the court on Exmark's Motion in Limine No. 1 to Preclude
Defendant from Presenting Improper Arguments, Evidence, and Testimony Related to
Claim Construction, Filing No. 484; Exmark's Motion in Limine No. 2 to Preclude Defendant
From Presenting Arguments, Evidence, and Testimony Regarding Equitable Defenses,
Filing No. 482; Exmark's Motion in Limine No. 3 to Preclude Defendant From Presenting
Arguments, Evidence, and Testimony Regarding Issues Over Which it has Claimed
Privilege, Filing No. 485; Exmark's Motion in Limine No. 5 to Exclude Testimony and
Argument Regarding Briggs’s Rejected Non-Infringement Argument, Filing No. 498;
Exmark's Motion Limine No. 6 to Preclude Defendant From Presenting Improper Evidence
and Arguments Related to Third Party Mowers, Filing No. 500; Exmark's Motion in Limine
No. 7 to Preclude Defendant From Presenting Evidence and Arguments Related to U.S.
Patent No. 6,848,246 to Samejima, Filing No. 502; Exmark's Motion in Limine No. 8 to
Overrule Briggs’s Objection to One Designation of the Deposition Testimony of James
Marshall, Filing No. 545; Briggs and Stratton Power Products Group, LLC's (hereinafter
Brigg's) Motions in Limine Nos. 1 to 14, Filing No. 491; and Briggs's motion in limine to use
depositions at trial, Filing No. 544.

By virtue of earlier orders in this case and the Order on Pretrial Conference, the
issues are limited to whether Versions 5-7 of Briggs’s accused mowers (i.e. Briggs’s
mowers with the modified baffle design introduced after suit was filed) infringe the '863
patent and whether Briggs’s infringement with respect to Versions 1-4 of the Briggs’s
accused mowers (i.e. Briggs mowers with its original baffle designs) was willful. See Filing
No. 505, Pretrial order at 4-5.
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 inadmissable 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 on the jury. Id. To the extent that
a party challenges the probative value of the evidence, an attack upon the probative
sufficiency of evidence relates not to admissibility but to the weight of the evidence and is a
matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th
Cir. 1996).
I.

Exmark's Motions
A.
Exmark's Motion in Limine No. 1 to Preclude Defendant from
Presenting Improper Arguments, Evidence, and Testimony Related to
Claim Construction (Filing No. 484)
This motion relates to the court's claim construction with respect to the limitation that

the flow baffles are "adjacent," in the context of Briggs's expert, Mr. Del Ponte's rebuttal
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report. Briggs argues that Mr. Del Ponte’s opinions regarding the “adjacent” limitations and
any arguments based thereon are fully consistent with the court’s claim construction order,
but states that it does not intend to present these opinions and arguments at trial in light of
the Court’s prior rulings and the need for economy during trial. Accordingly, this motion in
limine will be denied as moot. To the extent that evidence other than Mr. del Ponte's
rebuttal report is at issue, Briggs may assert an objection at trial.
B.
Exmark's Motion in Limine No. 2 to Preclude Defendant From
Presenting Arguments, Evidence, and Testimony Regarding Equitable
Defenses (Filing No. 482)
Exmark seeks to preclude evidence that relates to the equitable defenses, arguing
that they are matter for the court, and not a jury to decide.
In its earlier order, the court found that "the statutory provision [limiting damages to
the period dating back six years from the filing of the action] works a significant constraint
on the plaintiff's remedy and mitigates against the need to resort to the equitable remedies
of laches or waiver." Filing No. 476, Memorandum and Order at 29. The court also stated
that it found "the defenses of laches and waiver are inapplicable." Id. at 2. Accordingly, the
laches defense is out of the case.
Exmark and Briggs agree that Briggs should not be allowed to pursue its equitable
defenses at trial, but Briggs nevertheless argues that it should be allowed to introduce
evidence of Exmark’s delay in pursuing its claims against Briggs for the limited purposes of
rebutting (i) Exmark’s willful infringement claim and (ii) Exmark’s valuation of its patent for
the purpose of assessing damages. See Filing No. 512, Briggs's Brief at 2.
The court finds that Briggs has not shown that evidence of any delay in filing suit is
relevant to damages.

Damages will be established with reference to a hypothetical

negotiation. The date of the hypothetical negotiation is the time of the first infringement.
3

The argument that the delay in bringing suit somehow establishes Exmark's perception of
the value of its invention is specious. There are many reasons to forego filing a lawsuit, to
imply that Exmark did so because it did not think the invention had value is speculative.
Further, for the reasons stated in this court's sua sponte order on the objective prong
of the willfulness inquiry, Filing No. 564, the court finds that evidence of delay in filing suit
and/or laches is not relevant to willfulness. Accordingly, Exmark’s motion in limine will be
granted.
C.
Exmark's Motion in Limine No. 3 to Preclude Defendant from
Presenting Arguments, Evidence, and Testimony Regarding Issues over
which it has Claimed Privilege (Filing No. 485)
Exmark contends that Briggs has maintained its claim of privilege over the details of
its lawyer’s involvement and advice during the redesign process, but has indicated that it
will elicit testimony that its lawyers were involved in the redesign process. It contends that
at depositions, Briggs asserted attorney-client privilege over questioning directed at legal
reasons for the redesign. Exmark argues that "[h]aving used the claim of privilege as a
shield, Briggs should not now be allowed to use it as a sword." Filing No. 489, Exmark Brief
at 1.
Briggs states that it does not intend to present evidence at trial on issues for which it
has asserted privilege, but that Exmark's request is overbroad and would seeks to preclude
Briggs from arguing that one reason for its 2010 redesign was to attempt to avoid liability for
infringement of the ‘863 patent and that its lawyers were involved in the process. Filing No.
513, Brief at 1.
In response Exmark states, however, that it "does not object to Briggs arguing that
one reason for redesigning the baffles used in its accused products after being sued was an
attempt to avoid further liability for infringement of the ʼ863 patent." See Filing No. 525,
4

Brief at 1. It concedes that Briggs’s employees may generally describe how the baffles
were redesigned after this lawsuit was filed, noting, for example, Briggs’s employees could
describe: 1) Which Briggs employees were involved in the redesign; 2) How long it took to
complete the redesign; 3) How the baffle design changed (e.g. a perfectly straight portion
was removed); and 4) That the purpose for the redesign was an attempt to avoid further
infringement of the ʼ863 patent. Id. at
Accordingly, Exmark's motion will be granted to the extent it seeks preclusion of
arguments, evidence, and testimony regarding issues over which Briggs has claimed
privilege, but overruled to the extent it to preclude Briggs from arguing that one reason for
its 2010 redesign was to attempt to avoid liability for infringement of the ‘863 patent and that
its lawyers were involved in the process.
D.
Exmark's Motion in Limine No. 4 - to exclude testimony and
argument regarding patent invalidity and to exclude irrelevant prior art
(Filing No. 496)

This motion is directed at Briggs's ostensible argument that it should be entitled to
“introduce evidence underlying” its invalidity case, and its effort to introduce several dozen
pieces of prior art at trial. Exmark argues that Briggs should not be allowed to relitigate its
invalidity defense.
Briggs argues that evidence underlying Briggs’s invalidity and non-infringement
defenses goes to the heart of whether its infringement (with respect to the earlier models)
was “so obvious” that Briggs should have known about it, as Exmark alleges, for purposes
of willful infringement. Briggs also contends the prior art also reflects “old modes” for doing
the same thing as the patented invention, which is one of the Georgia-Pacific factors for the
jury to consider (factor nine) in determining damages.

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For the reason stated in its sua sponte order, Filing No. 564, the court finds the
evidence is not relevant to willfulness.

Further, the court finds prior art is relevant to

damages only to the extent that the patent was used in a product. Briggs is entitled to
introduce side discharge mowers that were actually used prior to Exmark’s invention as
potentially relevant to Georgia-Pacific factor nine: “The utility and advantages of the patent
property over the old modes or devices, if any, that had been used for working out similar
results.” Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y.
1970) (emphasis added).
Accordingly, the court finds that the motion in limine will be granted to the extent the
evidence relates to the invalidity defense, but denied with respect to evidence related to
damages, without prejudice to its reassertion via timely objection at trial.
E.
Exmark's Motion in Limine No. 5 to Exclude Testimony and
Argument Regarding Briggs’s Rejected Non-Infringement Argument
(Filing No. 498)
For the same reasons stated supra in connections with Exmark's Motions in Limine
Nos. 2, 3, and 4, the court finds the motion should be granted.
F.
Exmark's Motion Limine No. 6 to Preclude Defendant From
Presenting Improper Evidence and Arguments Related to Third Party
Mowers (Filing No. 500)
In this motion, Exmark argues that the “will use” portion of Defendant Briggs’s exhibit
list includes more than 35 exhibits that were never previously produced in this case. The
exhibits were downloaded from third-party websites on July 31, 2015, and show current
third party mower products. Exmark contends that these exhibits are not relevant to any
issue remaining in this case. It argues the existence of non-infringing alternatives can be
relevant to damages under a reasonable royalty theory only if the products were actually

6

available at the time of the “hypothetical negotiation,” which in this case is when the ʼ863
patent issued in 1999.
Briggs contends the evidence is relevant to the subjective prong of the willfulness
inquiry. It contends that "[w]itnesses from both sides will establish that third parties have
been selling mowers like those currently being sold (as demonstrated by the exhibits Briggs
identified in its exhibit list) throughout the period that Briggs was selling its accused baffles."
It states "[t]he images of current products will be used as proxies for old products when
witnesses testify that they are the same." It argues "[t]he existence of baffles in third party
products that had actually been in the market for years supports Briggs’s explanation of why
it perceived no patent infringement risk from the same baffles in its own products." Briggs
also argues the evidence is relevant to the issue of damages, i.e., showing the availability of
non-infringing alternatives.
In response, Exmark argues that Briggs cannot claim that the existence of third-party
products caused it to subjectively believe it did not infringe the ‘863 patent when it denies
that it even knew of the '863 patent until this lawsuit was filed. Further, it argues that
Briggs’s relevance argument presumes that a patentee is obligated to bring suit immediately
whenever there is an infringement, and therefore, if suit is not brought, the public can infer
there is no infringement. This court rejected that argument in the earlier order, finding that
the penalty for not promptly enforcing one’s patent rights is an inability to obtain damages
for infringement occurring more than six years prior to the infringement. See 35 U.S.C. §
286.
Exmark states that if the court allows admission of any of the exhibits, Briggs’s
argument justifies showing the jury only the annotated figure itself just as it is reproduced on
page 2 of Briggs’s brief. Filing No. 516, Brief at 2.
7

The relevance of the evidence is questionable in light of the court’s sua sponte
order, Filing No. 564. However the court need not address the issue because Briggs does
not address its failure to produce the items to the plaintiff. Because the evidence was not
timely produced, the court finds the plaintiff's motion should be granted.
G.
Exmark's Motion in Limine No. 7 to Preclude Defendant From
Presenting Evidence and Arguments Related to U.S. Patent No.
6,848,246 to Samejima (Filing No. 502)
The Samejima patent is a later-issued patent. In this motion, Exmark warns of the
danger of Briggs using the Samejima patent to create the improper inference that "the
existence of a later-issued patent so similar to the design of Briggs’s redesigned accused
products shows that Briggs’s redesigned accused products cannot infringe the ʼ863 patent
or reduces the value of the ʼ863 patent for damages purposes." See EZ Dock, Inc. v.
Schafer Sys., No. 98-2364, 2003 WL 1610781, *11 (D. Minn. Mar. 8, 2003)(excluding
evidence of a patent on an accused product).

Exmark also cites cases that show what it

characterizes as the "well-known fact that juries do not understand that a product shown in
a later patent (like Samejima) can still be covered by an earlier patent (like Exmark’s ʼ863
patent)." It argues that allowing the jury to see the Samejima patent would be extremely
and unfairly prejudicial to Exmark.
Briggs argues that the Samejima patent is relevant to the issue of damages as
showing an available non-infringing alternative.

Exmark argues, however, that the

Samejima patent shows a design that is very similar to the structure in Briggs’s accused
products with redesigned baffles and thus, the infringement status of the Samejima design
is essentially the same triable issue as the infringement of Briggs’s redesign. In short,
Briggs maintains Samejima is non-infringing.
infringing.
8

Exmark maintains it, like Briggs's, is

The court is unable to fully evaluate the relevance of the challenged evidence in the
context of a pretrial motion.

Exmark's concerns may warrant a cautionary or limiting

instruction, but the court cannot determine the ambit of such an instruction at this time. The
court will admit the evidence at issue only on a showing that it is relevant to the issues in
the case, and only to the extent that the relevance of the evidence outweighs its potential to
cause prejudice or confusion under Fed. R. Evid. 403. The court finds the motion can be
adequately resolved at trial, either as an objection with a sidebar, or with a review of the
evidence outside the presence of the jury. Accordingly, the court finds that the motion in
limine should be denied at this time, without prejudice to its reassertion via timely objection
at trial.
H.
Motion in Limine No. 8 - to overrule Briggs’s objection to one
designation of the deposition testimony of James Marshall (Filing No.
545)
This motion involves parts of the videotaped deposition testimony of Briggs’s
employee, Mr. James Marshall that Exmark intends to present in its case in chief. Briggs
has objected to the designation of pages 198-199 of Mr. Marshall’s testimony as
“Irrelevant.” See Filing No. 549-2, Ex. 1, Marshall designation at 2.
Generally, it is the court's practice to rule on objections to deposition testimony a few
days in advance of when the deponent's testimony is scheduled to be offered at trial.
Accordingly, the court will defer ruling at this time.
II.

Briggs and Stratton's Motions in Limine Nos. 1 to 14, Filing No. 491.1
A.
Motion No. 1 - To Exclude Hearsay Evidence of Alleged
Price Erosion or Lost Sales Due to Briggs

1

Exmark does not oppose Briggs's Motion in Limine Nos. 3, 4, 7, and 9-13. Accordingly those
motions will be denied as moot.

9

This motion relates to expert Melissa Bennis's testimony. Briggs argues that
the court should exclude the hearsay-within-hearsay relied upon by Ms. Bennis for her
opinions on purported price erosion and lost sales.
Exmark

contends

Briggs's

motion

is

based

on

a

misstatement

and/or

misunderstanding of Fed. R. Evid. 703 for the proposition that Ms. Bennis may not rely on
conversations between Exmark employees and its customers, and on incomplete
statements of the facts surrounding Briggs’ attempt to sell infringing mowers to some of
Exmark’s largest customers. Also, it contends the testimony is not hearsay because it is not
offered for the truth of the matter asserted, but rather will be offered to explain Exmark’s
actions, such as why Exmark lowered its prices to its largest customer. Further, Exmark
argues that there is no prejudice to Briggs in admission of these conversations because
Briggs’s own documents confirm that Briggs was making a targeted effort to take away
Exmark’s large customers by offering them infringing mowers at lower prices.
It appears this evidence presents the type of facts or data that experts can rely on
under Fed. R. Evid. 703 (i.e., experts in the field would reasonably rely on this kind of
information). Accordingly, the defendant’s motion in limine will be denied.
B.
Motion In Limine No. 2 - To Exclude Evidence of Any Affirmative
Duty by Briggs to Seek an Opinion of Counsel
Exmark replies that “as long as Briggs does not open the door to the topic by making
inferences to the jury that its lawyers somehow participated in the redesign of its accused
products, Exmark will not argue that Briggs should have obtained an opinion of counsel.”
Briggs states that it does not intend to open the door in this manner.
Briggs did not claim privilege over general questions regarding why Briggs
redesigned its baffles after the lawsuit was filed. Specifically, Briggs contends Exmark was

10

permitted to question Briggs’s witnesses regarding whether there was a legal reason to
redesign its mowers and whether that legal reason was to avoid potential ongoing liability.
Exmark agrees that Briggs may present such testimony—i.e., that “one reason for
redesigning the baffles used in its accused products after being sued was an attempt to
avoid further liability for infringement of the ‘863 patent.”
It appears this motion is mooted by the agreement of the parties. See supra at 4-5.
C.
Motion In Limine No. 5 - To Exclude References to and Evidence
Regarding the Preferred or Commercial Embodiments of the ‘863 Patent
Briggs seeks a ruling precluding evidence regarding the ‘863 patent’s specification
(including any preferred embodiments) and commercial embodiments, including any
comparisons between the accused products and the preferred or commercial embodiments
of the ‘863 patent.

Briggs argues that introduction of such evidence, including any

comparisons between Briggs’ accused decks and the figures of the ‘863 patent or Exmark’s
decks, will mislead the jury into believing that the ‘863 patent’s preferred and commercial
embodiments represent the legal claims of the ‘863 patent—i.e., the jury will believe that
infringement is determined by comparing Briggs’ accused products with the patent figures
or with Exmark’s products.

It contends that Exmark’s attempt to mislead the jury into

comparing Briggs’s accused products with Exmark’s patent figures and products, rather
than the asserted claims, was made clear at the summary judgment hearing.
Exmark agrees with Briggs that a proper infringement analysis compares the
accused products to the claims of the patent at issue as construed by the court. It agrees
that neither Exmark nor Briggs should be allowed to compare the accused products to
either the preferred embodiments (i.e., the patent drawings) or the commercial
embodiments (i.e., Exmark's actual mowers) of the ʼ863 patent for purposes of determining
11

whether Briggs’s accused, “redesigned” products infringe.

It argues that the preferred

embodiments and the specification generally are relevant to help explain the invention and
provide context to the claims and are relevant to willfulness and damages, and may also be
admissible to rebut Briggs's evidence.
The court finds the evidence is relevant and that any potential jury confusion can be
remedied with a proper jury instruction or limiting instruction. Further, any improprieties in
connection with the presentation of this evidence can be addressed in a timely objection at
trial. Accordingly, the defendant’s motion will be denied, without prejudice to reassertion.
D.
Motion In Limine No. 6 - To Exclude References to and Evidence
Regarding Phil Wenzel’s Mulching Kit Email
This motion involves Phillip Wenzel's testimony in the Toro v. Scag action.

He

testified in a deposition in that case, and later sent an email that suggests awareness of
patents at issue in Scag. Briggs asks the court to exclude Exmark’s characterization of that
evidence as showing that Mr. Wenzel had knowledge of the ‘863 patent in this case. Briggs
also argues that Wenzel's email was about mulching kits, which serve a different purpose
than flow baffles and it is thus irrelevant.
The court finds that Briggs's contentions go more to the weight of the evidence than
its admissibility. Any infirmities can be addressed in cross-examination. Accordingly, the
court finds the defendant's motion should be denied.
E.
Motion In Limine No. 8 - To Exclude the Cumulative Opinions of
Mr. Strykowski and Mr. Busboom
Briggs argues that the Court should preclude Exmark from presenting the same
opinions from more than one expert at trial. Only one issue set forth in the expert reports of
Mr. Strykowski and Mr. Busboom remains in the case—whether Briggs’s curved redesign

12

infringes the ‘863 patent. Briggs contends both experts provided the same opinion in this
regard in their expert reports. It also argues that this issue can be decided before trial.
Exmark points out that the experts have differing backgrounds. The plaintiff should
be allowed to present two opinions, the defendant can object if the testimony is overly
repetitive and cumulative. Any danger that the jurors may think that the party with more
witnesses prevails is remedied in the jury instructions. According the motion will be denied.
F.
Motion In Limine No. 14: To Exclude Any Reference to and
Evidence Regarding Other Litigation Involving Briggs
Briggs contends that it does not seek to exclude prior sworn testimony (to the extent
relevant) from other litigations, and, contrary to Exmark’s argument, Briggs asserts it does
not seek to exclude the prior deposition of Mr. Wenzel in the Scag case from 2002. Rather,
Briggs seeks to exclude Exmark from presenting argument or evidence regarding other
litigation involving Briggs and/or any entity affiliated with Briggs. It argues such references
and evidence are not probative of any relevant fact in this case and will mislead the jury,
confuse the issues, and unduly prejudice Briggs.
The court is unable to fully evaluate the relevance of the challenged evidence in the
context of a pretrial motion. The court will admit the evidence at issue only on a showing
that it is relevant to the issues in the case, and only to the extent that the relevance of the
evidence outweighs its potential to cause prejudice or confusion under Fed. R. Evid. 403.
Accordingly the motion will be denied without prejudice to reassertion at trial.
G.

Motion in Limine to Use Depositions at Trial (Filing No. 544)

This relates to Briggs's designations of deposition testimony of Exmark employees
Rod Benson, Garry Busboom, Dan Dorn, and Mark Stinson. Exmark has lodged objections
to some of the testimony. See Filing No. 550-2, Filing No. 561-1, designations and counter

13

designations, 561-2, modified designations and counter-designations.

The evidence

relates, in part, to the issue of Exmark's delay in filing suit that was addressed in the court's
sua sponte order and in the court's ruling on other motions in limine.
As noted, it is the court's general practice to rule on objections to deposition
designations a few days in advance of the scheduled testimony. Accordingly, the court will
defer ruling on the defendant's motion at this time.
IT IS ORDERED:
1.

Exmark's Motion in Limine No. 1 to Preclude Defendant from Presenting

Improper Arguments, Evidence, and Testimony Related to Claim Construction
(Filing No. 484) is denied as moot.
2.

Exmark's Motion in Limine No. 2 to Preclude Defendant from Presenting

Arguments, Evidence, and Testimony Regarding Equitable Defenses (Filing No. 482 is
granted.
3.

Exmark's Motion in Limine No. 3 to Preclude Defendant from Presenting

Arguments, Evidence, and Testimony Regarding Issues Over Which it has Claimed
Privilege (Filing No. 485) is granted as set forth above.
4.

Exmark’s Motion in Limine No. 4 to Exclude Testimony and Argument

Regarding Patent Invalidity and to Exclude Irrelevant Prior Art (Filing No. 496) is granted in
part and denied in part without prejudice to reassertion at trial
5.

Exmark's Motion in Limine No. 5 to Exclude Testimony and Argument

Regarding Briggs's Rejected Non-Infringement Argument (Filing No. 498) is granted.
6.

Exmark's Motion in Limine No. 6 to Preclude Defendant from Presenting

Improper Evidence and Arguments Related to Third Party Mowers (Filing No. 500) is
granted.
14

7.

Exmark's Motion in Limine No. 7 to Preclude Defendant from Presenting

Evidence and Arguments Related to U.S. Patent No. 6,848,246 to Samejima (Filing No.
502) is denied, without prejudice to reassertion.
8.

Exmark's Motion in Limine No. 8 is deferred.

9.

Briggs and Stratton Power Products Group, LLC's (hereinafter Brigg's)

Motions in Limine Nos. 1 to 14 (Filing No. 491) are denied.
10.

Briggs's Motion in Limine Nos. 3, 4, 7, and 9-13 are denied as moot.

11.

Briggs's Motion in Limine to Use Depositions at Trial is deferred.

Dated this 4th day of September, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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