Anascape, Ltd v. Microsoft Corp. et al

Filing 302

ORDER granting in part and denying in part 264 Pla's Sealed Patent Motion in Limine. Signed by Judge Ron Clark on 5/1/08. (djh, )

Anascape, Ltd v. Microsoft Corp. et al

Doc. 302

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ANASCAPE, LTD. Plaintiff, MICROSOFT CORPORATION and NINTENDO OF AMERICA, INC. Defendants. § § § § § § § §

Civil Action No. 9:06cv158

ORDER ON PLAINTIFF'S MOTION IN LIMINE [Doc. #264] Evidence Plaintiff Seeks to Exclude 1. Any evidence, testimony, or reference regarding post-filing mediation, settlement or licensing negotiations between Anascape and Defendants. (Pl.'s Br. at 1.) 2. Any evidence, testimony, or reference regarding the possible issuance of an injunction, an award of treble damages, and attorneys' fees. (Pl.'s Br. at 2.) 3. Any evidence, testimony, or reference regarding Plaintiff's counsel representing Anascape on a contingency fee basis. (Pl.'s Br. at 2.) 4. Any evidence, testimony, or reference to Court orders other than the specific claim construction definitions adopted by the Court, including comments contrary to the Court's Markman Order. (Pl.'s Br. at 2-3.) Defendants' Response Unopposed. Court's Ruling Sustained.

Unopposed.

Sustained.

Unopposed.

Sustained.

Unopposed.

Sustained.

1
Dallas 254933v1

Dockets.Justia.com

Evidence Plaintiff Seeks to Exclude 5. Any evidence, testimony, or reference regarding any purported prior art references that were not in Defendants' Invalidity Contentions (including any supplements allowed by the Court), not disclosed in accordance with 35 U.S.C. § 282, or not properly disclosed pursuant to the requirements of P.R. 3-3 and 3-6. (Pl.'s Br. at 3.) 6. Any evidence, testimony, or reference to Anascape as a "patent troll" or similar characterization. (Pl.'s Br. at 3-4.) 7. Any evidence, testimony, or reference regarding any reference to the workload of the PTO or any attempt to disparage the PTO. (Pl.'s Br. at 4.) 8. Any evidence, testimony, or reference regarding charges of sexual assault against Brad Armstrong. (Pl.'s Br. at 4-5.) 9. Any evidence, testimony, or reference regarding the religious beliefs of any witness. (Pl.'s Br. at 5.) 10. Any testimony by witnesses not properly disclosed. (Pl.s Br. at 56.)

Defendants' Response Unopposed.

Court's Ruling Sustained.

Unopposed.

Sustained.

Unopposed.

Sustained.

Unopposed.

Sustained.

Unopposed.

Sustained.

Opposed--All witnesses listed on Defendants' witness lists have been properly disclosed. For those witnesses, information provided in depositions, reports, documents and the like has been "properly disclosed" and is the proper subject of testimony. Such testimony is not unfairly prejudicial under FRE 403. (Defs.' Resp. at 1.)

Sustained as to undisclosed witnesses. Sustained as to references not listed in invalidity contentions. Overruled as to remainder. Make timely objections.

2
Dallas 254933v1

Evidence Plaintiff Seeks to Exclude 11. Any evidence, testimony, or reference suggesting that the Patent-in-Suit issued under the wrong obviousness standard. (Pl.'s Br. at 6.)

12. Any evidence, testimony, or reference regarding Anascape's duty of candor or any claim of inequitable conduct. (Pl.'s Br. at 6-7.)

Defendants' Response Opposed--Given the recent change of the obviousness standard, if Anascape is allowed to argue that the PTO has already decided the issue of obviousness in its favor, Defendants must be allowed to explain the proper obviousness standard to the jury. (Defs.' Resp. at 1-2.) Opposed--Defendants should be allowed to show that statements Mr. Armstrong made to the PTO were incorrect. This is relevant to the priority date of the `700 patent and Mr. Armstrong's credibility, and should not be excluded under FRE 401, 402, or 403. (Defs.' Resp. at 2-3.)

Court's Ruling Sustained ­ goes both ways. Willfulness is moot and inequitable conduct is for court. Sustained. Plaintiff can get benefit of earlier priority based on written description but not based on credibility of inventor. If good faith basis for attack on credibility, bring up outside presence of jury. Overruled as to history of company. Sustained as to any inference about motive or filing of lawsuit in this jurisdiction. Sustained. Defendants do not help themselves by making arguments that have nothing to do with motion.

13. Any evidence, testimony, or reference regarding Brad Armstrong's property in Nevada. (Pl.'s Br. at 7-8.)

Opposed--Defendants should be allowed to explain the history of Anascape's formation, as well as the fact that Mr. Armstrong moved to Texas partially in order to bring this lawsuit in this District. (Defs.' Resp. at 3.) Opposed--Defendants should be allowed to offer evidence regarding Mr. Armstrong's drafting of the asserted claims of the `700 patent. This evidence is relevant to the issues of invalidity and non-infringement, and have nothing to do with Mr. Armstrong's pre-filing investigations, and should not be excluded under FRE 401, 402, or 403. (Defs.' Resp. at 3-4.)

14. Any evidence, testimony, or reference regarding the sufficiency of Brad Armstrong's pre-filing investigation. (Pl.'s Br. at 8.)

3
Dallas 254933v1

Evidence Plaintiff Seeks to Exclude 15. Any evidence, testimony, or reference regarding modifying claim 19 of the Patent-in-Suit. (Pl.'s Br. at 8-9.)

Defendants' Response Opposed--Defendant should be allowed to offer evidence or testimony confirming that "providing outputs ... controlling objects and navigating a viewpoint" is a positive limitation of claim 19, because such evidence is relevant to the issue of noninfringement. (Defs.' Resp. at 4.) 16. Any evidence, testimony, or Opposed--The term "backdating" reference to "backdating," accurately describes Anascape's including references to backdating position regarding the priority date of and the stock market. (Pl.'s Br. at the `700 patent. This term is not 9-10.) inflammatory, inaccurate or prejudicial, and its use should not be precluded under FRE 403. (Defs.' Resp. at 4-6.) 17. Any evidence, testimony, or Opposed--The re-examination of the reference to the reexamination of `700 patent is relevant to the issue of the Patent-in-Suit. (Pl.'s Br. at 10- whether Defendants willfully 11.) infringed. Should the Court deny Defendants' motion for summary judgment on this issue, Defendants should be allowed to offer evidence of the re-examination, in order to defend against a claim of willfulness. (Defs.' Resp. at 6-7.) 18. Defendants should be required to Opposed--Defendants have identified identify now the prior art the references and combination of references they actually plans to references they will rely at trial in their rely upon at trial, and should be expert reports, and will not go beyond precluded, pursuant to Fed. R. them. (Defs.' Resp. at 7.) Civ. P. 16, from offering evidence, expert opinions, and other testimony that pertains to prior art other than those references. (Pl.'s Br. at 11-12.)

Court's Ruling Sustained.

Overruled.

Sustained.

Overruled. But only references properly identified in invalidity contentions may be mentioned before jury without prior permission from court.

4
Dallas 254933v1

Evidence Plaintiff Seeks to Exclude 19. Any argument that the term "3-D graphics controller," or any other claim term of the Patent-in-Suit, requires an input member or input members moveable on three linear axes and three rotational axes. (Pl.'s Br. at 12.)

Defendants' Response Opposed--Plaintiff's motion is contrary to the Court's claim construction order. (Defs.' Resp. at 78.)

20. Any argument that Anascape must prove method steps to show infringement of the asserted apparatus claims. (Pl.'s Br. at 13.)

21. Any argument or suggestion that Defendants' products do not infringe because they do not comprise a "flexible membrane sheet" or any discussion of the stipulation entered into between the parties regarding the claim term "flexible membrane sheet." (Pl.'s Br. at 14.) 22. Any testimony by fact witnesses regarding matters of law. (Pl.'s Br. at 14.)

Court's Ruling Sustained. Although "any" is broad. If Defendant believes particularized focused argument is valid, discuss outside presence of jury. Opposed--Defendants should not be Reserved. precluded from submitting evidence and arguing that in order to infringe claim 19 the accused controllers must actually "provide outputs ... controlling objects and navigating a viewpoint." Defendants respectfully submit that the Court must resolve this disputed claim construction issue prior to trial. (Defs.' Resp. at 8-10.) Opposed--Should the Court allow Sustained, other Anascape to offer its 2004 license than that experts agreement with Sony at trial, can point out that Defendants must be allowed to explain license is not for that they are not accused of infringing exact same any claim that requires a "flexible technology. membrane sheet." (Defs.' Resp. at 1011.) Opposed--FRE 701 adequately limits Overruled. Make the testimony of fact witnesses. Fact appropriate witnesses should not be precluded objections. from testifying on factual matters just because the facts support legal issues. (Defs.' Resp. at 11.)

So ORDERED and SIGNED this 1 day of May, 2008.

___________________________________ Ron Clark, United States District Judge

5
Dallas 254933v1