GENBAND US LLC v. Metaswitch Networks Corp. et al

Filing 436

ORDER on Exhibit Objections. Signed by Magistrate Judge Roy S. Payne on 01/10/2016. (rsp2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
GENBAND US LLC
v.
METASWITCH NETWORKS CORP., ET
AL.

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Case No. 2:14-cv-33-JRG-RSP

ORDER ON EXHIBIT OBJECTIONS
The parties have submitted two disputes over the admissibility of exhibits at trial.
First, Genband submits an objection to DX-312, which relates to CableLabs. At the
pretrial hearing, the Court overruled Genband’s Fed. R. Evid. 402 and 403 objections to the
CableLabs-related evidence, referred to by the parties as “Bucket D.” Genband agrees that the
admissibility of DX-312 is governed by the Court’s ruling on the CableLabs evidence, but states
its objection to preserve it for the record. Accordingly, Genband’s objection is DENIED for the
reasons set forth at the pretrial hearing.
Second, Metaswitch objects to nine exhibits1 Genband intends to offer as evidence
Metaswitch copied Genband’s G9 product. Metaswitch argues this evidence is irrelevant because
no Genband expert has opined that the G9 product practices the asserted patents.
Evidence of copying is a secondary indicia of non-obviousness, but the copying must
bear some nexus or connection to an asserted claim. See (Dkt. No. 425). If Genband submits
evidence at trial that the G9 practices at least one asserted claim (e.g. via the testimony of an
engineer or the properly disclosed opinion of an expert), then Genband may rely on evidence that
Metaswitch allegedly copied the G9. Otherwise, this evidence bears no nexus to the asserted
claims and is not admissible.
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The exhibits are: PX0296, PX0297, PX0298, PX0329, PX0330, PX0192, PX0292, PX0293, PX0294.

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Because the record is not clear at this point, these exhibits will not be preadmitted and
Genband must seek leave before referring to these exhibits, which should be after it has offered
evidence of the nexus referred to above. However, Genband is not restricted to its rebuttal case
and may offer this evidence in its case in chief since Metaswitch has clearly put the matter at
issue.

SIGNED this 3rd day of January, 2012.
SIGNED this 10th day of January, 2016.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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