Anascape, Ltd v. Microsoft Corp. et al

Filing 304

ORDER granting in part and denying in part 263 Sealed Dfts' motion in limine. Signed by Judge Ron Clark on 5/1/08. (djh, )

Anascape, Ltd v. Microsoft Corp. et al

Doc. 304

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 DEFENDANTS' MOTION IN LIMINE [Doc. #263] 1 Defendants' Motion in Limine Any evidence or argument regarding the Sony-Anascape License Agreement. (pg. 1-6) Plaintiff's Response Opposed: Anascape does not consider this license as occurring as a part of a settlement, and even assuming it was, Anascape is not offering it for a purpose prohibited under FRE 408. The Court can prevent any confusion with a limiting instruction. (pg. 1-5) Any argument or evidence Opposed: Anascape will not offer regarding settlement agreements this settlement agreement for any generally, including Immersion's prohibited purpose under FRE 408. settlement agreement with Anascape will agree to this motion, Microsoft and Sony. (pg.6-7) unless Defendants open the door, including any discussion of the rumble feature being insignificant or unimportant or any reference to the pre-suit license with Immersion. (pg. 5-6) Any argument or evidence that Opposed: Anascape does not Logitech stole or intend on arguing that Logitech misappropriated Mr. stole or misappropriated the Armstrong's technology or ideas technology but does intend to offer and used them to develop evidence of that Mr. Armstrong Cyberman. (pg. 7) attempted to license the technology to Logitech. (pg. 6-7) Any argument that the PTO has Opposed: the PTO did determine decided that any asserted claim that the claims are entitled to a of the '700 patent is entitled to priority date of July 5, 1996 when an effective filing date of July 5, the examiner considered whether Court's Ruling Overruled.

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Sustained.

3

Sustained.

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Sustained unless Plaintiff wants later PTO action in also. 1

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Defendants' Motion in Limine 1996. (pg. 7-8) 5

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Plaintiff's Response the '700 patent was a continuation or continuation-in-part of the '525 patent. (pg. 7) Any evidence or argument Opposed: these meetings and regarding pre-suit meetings and communications are relevant to communications between willfulness, to demonstrate Armstrong and/or Anascape, on Defendants' interest in Anascape's one hand, and Microsoft and technology, to serve as Nintendo, on the other hand circumstantial evidence of (conditioned on the grant of infringement, and to rebut any Defendants' motion for summary inference that Anascape was not judgment of no willful interested in licensing its infringement) (pg. 8-9) technology. (pg. 8-9) Any evidence or argument of Opposed: Anascape views these settlement discussions with discussions as licensing, not Microsoft. (pg. 9-10) settlement discussions, and, even assuming that they were settlement discussions, Anascape does not plan to use them for a purpose prohibited by FRE 408. (pg. 9-10) Any evidence or argument that Opposed: Anascape is not relying Nintendo or Microsoft infringes on its license agreement with Sony because the accused controllers in support of this argument. are structurally similar to Sony's Instead, Anascape is relying upon Controllers. (pg. 10) Defendants' invalidity assertions regarding Sony's controllers. (pg. 10) Any argument or evidence that Nintendo copied the prototype controller Armstrong provided to Howard Cheng in 1997. (pg. 1011) Any evidence or argument that any employee of non-party Nintendo Co., Ltd. has not attended or testified at trial. (pg. 11) Opposed: This is relevant to Anascape's willfulness and copying arguments. (pg. 10-11) Opposed: Nintendo has demonstrated the ability to obtain Nintendo Co., Ltd. witnesses. (pg. 11) Opposed: As the presumption is a correct statement of law, Anascape should be able to reference it. The Court can cure any confusion or prejudice with a limiting instruction. (pg. 11-12)

Court's Ruling

Based on Anascape's brief -- overruled as to communication with Nintendo 1997 ­ 2002. Sustained as to other communications. Sustained.

8

Statements by Defendants that their products were similar to Sony, or the like, are admissible. Otherwise, sustained. Sustained.

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10 Any argument regarding the presumption of validity. (pg. 1112)

Sustained unless Plaintiff can show why particular witnesses should be here. Overruled.

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Defendants' Motion in Limine 11 Any evidence or argument of infringement under the doctrine of equivalents. (pg. 12-13) 12 Any argument or evidence not identified in its interrogatory responses of an "invention date" earlier than November 16, 2000. (pg. 13) 13 Any argument urging the jury to draw adverse inferences from the assertion of the attorney/client privilege. (pg. 13-14) 14 Any argument or evidence that Defendants have failed to provide discovery, or otherwise engaged in improper litigation conduct. (pg. 14)

Plaintiff's Response Court's Ruling Opposed: Based upon Anascape's Overruled. evidence of literal infringement, the jury could find literal infringement or infringement under the doctrine of equivalents. (pg. 12-13) Opposed: This is not a proper topic Overruled. for a motion in limine because there is conflicting evidence that the jury should be able to weigh. (pg. 13) Opposed: Anascape's reference to privilege log entries is not an attempt to have the jury draw an adverse inference from the assertion of the attorney-client privilege. (pg. 13-14) Opposed: Anascape wants to be able to argue that Defendants have failed to provide proper discovery in the event that a witness attempts to evade a question by referencing documents that have not been produced. (pg. 14) Objection withdrawn ­ sustained.

15 Any argument or evidence that either Defendant has not elected to produce an opinion of counsel to rebut Anascape's willfulness claim. (pg. 14-15) 16 Exclude evidence, testimony, or reference regarding the parties' overall revenues, profits or wealth, including any evidence or argument that Anascape is seeking a small portion of either Defendants' overall revenues,

Opposed: Defendants' failure to obtain an opinion of counsel is still relevant to the determination of whether enhanced damages should be awarded. (pg. 14-15) Unopposed

Sustained as to improper conduct. Sustained as to failure to provide but if Defendants rely on documents not produced or Defs ask Pl.'s witness why facts in documents not produced was not considered, then door is opened. Objection withdrawn ­ sustained. Sustained.

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Defendants' Motion in Limine profits or wealth (pg. 15) Exclude evidence, testimony, or reference regarding sales (existence, units, or revenue) of products or services outside the United States, except that Anascape may refer to Canadian and Latin American sales by Nintendo's affiliates that have passed through the United States before sale (pg. 15) Exclude evidence, testimony, or reference regarding the desire or need to punish either Defendant, to send a message to either Defendant, or to make either Defendant pay more than the patent infringement damages requested by Plaintiff (pg. 15) Exclude evidence, testimony, or reference that either Defendant used the '700 patent, as issued, to develop or create the accused products (pg. 15) Exclude testimony in the form of opinions by any fact witness and by any witness who did not submit an expert report during the expert disclosure period in the litigation, except for any opinion testimony that is admissible under FRE 701 (pg. 15) Exclude evidence, testimony, or reference regarding any other litigation involving Plaintiff or either Defendant, with the exception of the Immersion v. Sony and Microsoft litigation (pg. 15) Exclude evidence, testimony, or reference regarding any discovery disputes, motions to compel, or orders compelling discovery (pg. 15)

Plaintiff's Response Unopposed

Court's Ruling Sustained.

Unopposed

Sustained.

Unopposed

Sustained.

Unopposed

Sustained.

Unopposed

Sustained.

Unopposed

Sustained.

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Defendants' Motion in Limine 23 Exclude evidence, testimony, or reference concerning the Court's denial of any dispositive motion (pg. 15) 24 Exclude evidence, testimony, or reference concerning any motion in limine brought by any party (pg. 15)

Plaintiff's Response Unopposed

Court's Ruling Sustained.

Unopposed

Sustained.

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

___________________________________ Ron Clark, United States District Judge

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