Anascape, Ltd v. Microsoft Corp. et al

Filing 310

AMENDED ORDER on Anascape's objections to dfts' trial exhibits. Signed by Judge Ron Clark on 5/2/08. (djh, )

Anascape, Ltd v. Microsoft Corp. et al

Doc. 310

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION Anascape, Ltd., Plaintiff, v. Microsoft Corp., and Nintendo of America, Inc., Defendants. AMENDED ORDER ON ANASCAPE'S OBJECTIONS TO DEFENDANTS' TRIAL EXHIBITS [Doc. #281] Civil Action No. 9:06-cv-158-RC JURY TRIAL REQUESTED

TRIAL EXHIBIT DX 7 Microsoft's Request for Reexamination of U.S. Patent No. 6,906,700 dated 5/4/07

OBJECTIONS Admission of this document is subject to Anascape's Motion in Limine No. 17 (reference to the reexamination of the patent-in-suit). This statement is Microsoft's counsel's views on why the patent is invalid, and is therefore objectionable hearsay, and states numerous legal conclusions. Finally, this is objectionable under 403, as the multiple proceedings in front of the patent office will confuse the jury, and is unfairly prejudicial, in light of its mimimal probative value.

RESPONSE COURT RULING The Patent Office reSustained. examination of the `700 patent is strong evidence that Defendants have not willfully infringed (i.e., have not acted despite an objectively high likelihood that their actions constituted infringement of a valid patent). 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. See Defs.' Resp. at 6-7. This Request is not offered for the truth of the matters asserted.

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Dockets.Justia.com

TRIAL EXHIBIT DX 8 PTO Order dated 10/9/07 granting reexamination of U.S. Patent No. 6,906,700

DX 9 File History of Reexamination of U.S. Patent No. 6,906,700 (Reexamination Control No. 95/000,221)

OBJECTIONS Admission of this document is subject to Anascape's Motion in Limine No. 17 (reference to the reexamination of the patent-in-suit). This statement is a preliminary statement by the patent office as to why the patent is invalid, and is therefore objectionable hearsay, and states numerous legal conclusions. This exhibit is objectionable under 403, as the multiple proceedings in front of the patent office will confuse the jury, and is unfairly prejudicial, in light of its mimimal probative value. Furthermore, the jury may become confused about the presumption of validity in light of this second, preliminary statement of the patent office. Admission of this document is subject to Anascape's Motion in Limine No. 17 (reference to the reexamination of the patent-in-suit). The file history of the reexamination should not be admitted for the same reasons listed for DX7 and DX8.

RESPONSE COURT RULING The Patent Office Order Sustained. granting re-examination of the `700 patent is strong evidence that Defendants have not willfully infringed (i.e., have not acted despite an objectively high likelihood that their actions constituted infringement of a valid patent). 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. See Defs.' Resp. at 6-7. This Order is a public record under FRE 803(8), and relevant even if not admitted for the truth of the matters asserted.

The file history of the Patent Office re-examination of the `700 patent is strong evidence that Defendants have not willfully infringed (i.e., have not acted despite an objectively high likelihood that their actions constituted infringement of a valid patent). Should the Court deny Defendants' motion for summary judgment on this issue, Defendants should be allowed to offer evidence of

Sustained.

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TRIAL EXHIBIT

DX 10 PTO Order dated 7/10/07 granting reexamination of U.S. Patent No. 6,222,525

DX 11 File History of Reexamination of U.S. Patent No. 5,222,525 (Reexamination Control No. 90/008,767)

RESPONSE the re-examination, in order to defend against a claim of willfulness. See Defs.' Resp. at 6-7. This file history is a public record under FRE 803(8), and relevant even if not admitted for the truth of the matters asserted. This exhibit is This document is relevant as objectionable under the `525 patent is the parent FRE 403, as the multiple of the patent in suit. proceedings in front of Questions regarding novelty the patent office will of the `525 patent bear confuse the jury and is directly on novelty of the unfairly prejudicial in `700 patent. DX10 is not light of its mimimal unfairly prejudicial, and its probative value, probative value far especially considering outweighs any possible risk that the '525 Patent is no of jury confusion. longer asserted against either defendant. Additionally, the reexamination of the `525 patent is relevant to Defendants' inequitable conduct defense and evidences the materiality of the withheld Cyberman prior art reference, among other things. See objections to DX9 See response from DX10. and DX10.

OBJECTIONS

COURT RULING

Sustained.

Sustained.

DX 19 Red-lined comparison chart of applications of U.S. Patent Nos.

Not authenticated; demonstrative without foundation.

A witness at trial can authenticate that this fairly shows the differences between the 1996 and 2000 patent applications filed by

Exhibit Withdrawn

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TRIAL EXHIBIT 6,906,700 and 6,222,525 DX 37 U.S. Patent No. 4,414,537, Dezmelyk Ex. 4

OBJECTIONS This exhibit is objectionable because Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This exhibit is objectionable because Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This exhibit is objectionable because Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This exhibit is objectionable because Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

RESPONSE Mr. Armstrong. This exhibit is offered not as invalidating prior art but as evidence of the state of the art. It was properly disclosed in conjunction with Mr. Dezmelyk's report and in Defendants' Identification of Prior Art Pursuant to 35 U.S.C. § 282 ("282 Notice"). This exhibit is offered not as invalidating prior art but as evidence of the state of the art regarding the use of multiple joysticks. It was properly disclosed in conjunction with Mr. Dezmelyk's report. It is relevant to rebut allegations of copying. This exhibit is offered not as invalidating prior art but rather is relied upon to distinguish an accelerometer from a bi-directional proportional sensor. It was properly disclosed in conjunction with Mr. Dezmelyk's report. This exhibit is not offered as invalidating prior art, and Defendants have agreed not to use the exhibit as such. Instead, this exhibit is offered for the following reasons: (a) Rebut Copying: Based on Plaintiff's willfulness position in opposition to Defendants' motion for summary judgment, Mr. Armstrong's deposition testimony, and Anascape's inclusion of a jury instruction

COURT RULING For the reasons stated on the record, sustained.

DX 49 U.S. Patent No. 4,386,914, Dezmelyk Rebuttal Ex. 29

For the reasons stated on the record, sustained.

DX 50 U.S. Patent No. 5,128,671, Dezmelyk Rebuttal Ex. 32

For the reasons stated on the record, sustained.

DX 53 U.S. Patent No. 6,004,134 (MSANAS000526878)

Exhibit Withdrawn

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TRIAL EXHIBIT

DX 54 Fiorito Summary Exhibit D

RESPONSE on copying, it is expected that Plaintiff will argue at trial that Mr. Armstrong through a meeting in 1999 taught Microsoft how to make the accused controllers. This exhibit shows that, prior to that meeting, Microsoft had its own internal technology on game controllers having accused features later used in the accused Xbox controllers. Microsoft's own history and expertise in game controllers, which is illustrated in this patent, is highly relevant to rebut this false charge by Anascape that Microsoft copied from Mr. Armstrong. (b) Show State of the Art: This patent shows the state of the art in game controllers and 3D games. Because this exhibit is not offered to show invalidating prior art but instead for other reasons, Anascape's objection that the exhibit was not disclosed under P.R. 3-3, 3-4, and 3-6 (which relate to invalidity documents), is not applicable. Demonstrative without This exhibit is proper foundation. pursuant to Fed. R. Civ. P. Additionally, this 26(a)(2)(B)(iii), and FRE exhibit should not be Rules 702, 703, and 705. To admitted before the jury, the extent necessary, because inequitable Defendant's expert will conduct will be tried to provide a foundation for this the Court (Docket No. exhibit at trial. Additionally, 219). this exhibit is properly admitted before the jury if Anascape's willful infringement allegation is

OBJECTIONS

COURT RULING

Sustained. Willfulness is gone. Inequitable conduct goes to court.

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TRIAL EXHIBIT DX 58 Bristow Exhibit: Annotated Photograph of Logitech CyberMan Controller, Bristow Ex. R DX 59 Bristow Exhibit: Annotated Photograph of Sega Saturn 3D Control Pad, Bristow Ex. W DX 60 Bristow Exhibit: Annotated Photograph of Sony "Flightstick," Bristow Ex. X DX 62 Bristow Exhibit: Annotated Photograph of Sony Dual Shock 2 Controller, Bristow Ex. BB DX 63 Bristow Summary Exhibit: 6DOF Summary Exhibit, Bristow Ex. LL

OBJECTIONS Demonstrative without foundation.

Demonstrative without foundation.

RESPONSE before the jury. This exhibit is proper pursuant to Fed. R. Civ. P. 26(a)(2)(B)(iii), and FRE Rules 702, 703, and 705. To the extent necessary, Defendant's expert will provide a foundation for this exhibit at trial. See response from DX58.

COURT RULING Exhibit Withdrawn

Exhibit Withdrawn

Demonstrative without foundation.

See response from DX58.

Exhibit Withdrawn

Demonstrative without foundation.

See response from DX58.

Exhibit Withdrawn

This appears to be See response from DX58. Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded

Exhibit Withdrawn

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TRIAL EXHIBIT DX 64 Bristow Summary Exhibit: Prior Art Invalidity Claim Chart, Bristow Ex. MM

DX 65 Bristow Exhibit: Official U.S. PlayStation Magazine, excerpts from November 1999 issue, including "Two-rific article", Bristow Ex. RR

OBJECTIONS from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6, not produced or identified until March 20, 2008.

RESPONSE

COURT RULING

This exhibit is proper Exhibit pursuant to Fed. R. Civ. P. Withdrawn 26(a)(2)(B)(iii), and FRE Rules 702, 703, and 705. To the extent necessary, Defendant's expert will provide a foundation for this Rule 1006 expert summary at trial.

DX 66 Bristow Exhibit: GameFan magazine, excerpts from January 1996

As set forth in detail in Defendants' opposition and sur-reply to Plaintiff's motion to strike portions of Defendants' technical expert reports, and in Defendants' motion to amend its invalidity contentions and Reply brief in support thereof [Docket Nos. 226, 228, 258 and 262], this exhibit is proper. It relates to a piece of prior art (Sony Dual Shock 2) that is central to Defendants' invalidity case. Dual Shock 2 was previously identified and mapped in detail by Defendants in their original invalidity contentions. Defendants failed to As set forth in detail in timely identify or Defendants' opposition and produce this reference as sur-reply to Plaintiff's required by P.R. 3-3, 3- motion to strike portions of 4, and 3-6, not produced Defendants' technical expert or identified until March reports, and in Defendants'

Exhibit Withdrawn

Exhibit Withdrawn

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TRIAL EXHIBIT issue, including photos of Sony "Flightstick", Bristow Ex. TT DX 68 Bristow Exhibit: Official U.S. PlayStation Magazine, additional excerpts from November 1999 issue, Bristow 2d Suppl. Ex. WW

OBJECTIONS 20, 2008

DX 70 Bristow Exhibit: Official U.S. PlayStation Magazine, 19992000 Publishing Schedule, Bristow 2d Suppl. Ex. XX DX 71 Bristow Exhibit: Ziff-Davis Publication Schedule 20082009, Bristow 2d Suppl. Ex. YY DX 72 Bristow Exhibit:

RESPONSE motion to amend its invalidity contentions and Reply brief in support thereof [Docket Nos. 226, 228, 258 and 262], this exhibit is proper. Defendants failed to This exhibit is offered not as timely identify or invalidating prior art but as produce this reference as evidence supporting required by P.R. 3-3, 3- Defendants' experts' opinion 4, and 3-6, not produced regarding the publication or identified until date of invalidating prior art. February 20, 2008. This exhibit is proper pursuant to Fed. R. Civ. P. 26(a)(2)(B)(iii), and FRE Rules 702, 703, and 705. As set forth in detail in Defendants' opposition and sur-reply to Plaintiff's motion to strike portions of Defendants' technical expert reports, and in Defendants' motion to amend its invalidity contentions and Reply brief in support thereof [Docket Nos. 226, 228, 258 and 262], this exhibit is proper. Not authenticated, See response from DX68. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. Not authenticated, See response from DX68. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. Hearsay, Defendants failed to timely identify

COURT RULING

Exhibit Withdrawn

Exhibit Withdrawn

Exhibit Withdrawn

This document is not being Exhibit offered for the truth of the Withdrawn

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TRIAL EXHIBIT Google Groups website printout regarding Sony PlayStation Magazine November 1999 Issue, Bristow 2d Suppl., Ex. ZZ

OBJECTIONS or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated.

DX 73 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 2

RESPONSE COURT RULING matter asserted, but as evidence that the publication containing DX 65 was on sale no later than a specified date. Additionally, even if the document were offered for a hearsay purpose, it is admissible as a present sense impression, as it purports to contain a review of a game that the author of the document was playing immediately prior to preparing the review. This exhibit is offered not as invalidating prior art but as evidence supporting Defendants' experts' opinion regarding the publication date of invalidating prior art. As set forth in detail in Defendants' opposition and sur-reply to Plaintiff's motion to strike portions of Defendants' technical expert reports, and in Defendants' motion to amend its invalidity contentions and Reply brief in support thereof [Docket Nos. 226 and 228, 258 and 262], this exhibit is proper. This exhibit is proper pursuant to Fed. R. Civ. P. 26(a)(2)(B)(iii), and FRE Rules 702, 703, and 705. This appears to be This exhibit is proper Exhibit Defendants' expert pursuant to Fed. R. Civ. P. Withdrawn testifying by a video clip 26(a)(2)(B)(iii), and FRE created for purposes of Rules 702, 703, and 705. To the instant litigation. the extent necessary, This is hearsay, and the Defendant's expert will Court should require provide a foundation for this Defendants' expert to exhibit at trial. testify live at trial, rather

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TRIAL EXHIBIT

DX 74 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 3

DX 75 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 4

DX 76 Bristow Summary Exhibits on

OBJECTIONS than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip

RESPONSE

COURT RULING

See response from DX73.

Exhibit Withdrawn

See response from DX73.

Exhibit Withdrawn

See response from DX73.

Exhibit Withdrawn

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TRIAL EXHIBIT 6DOF, Bristow Rebuttal Ex. 5

DX 77 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 6

DX 79 Bristow Summary Exhibits on 6DOF/Xbox only 2.5 DOF, Bristow Rebuttal Ex. 8

OBJECTIONS RESPONSE created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be See response from DX73. Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be See response from DX73. Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence,

COURT RULING

Exhibit Withdrawn

Exhibit Withdrawn

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OBJECTIONS RESPONSE and should be excluded from the record pursuant to 403. DX 86 Not authenticated. This is a certified translation Translation of JP that is of record in the file PlayStation® history of the `700 Patent Manual reexamination, and was also disclosed in Defendants' original invalidity contentions. Additionally, this document will be introduced through Defendants' technical expert(s) at trial, and is proper pursuant to FRE Rules 702, 703, and 705. DX 88 Not authenticated. This is a certified translation. Translation of JP Furthermore, this exhibit It is offered not as a basis of Laid-Open Utility is objectionable if relied expert testimony but to show Model Publication on by Defendants' independent development by S61103836 technical experts, as it is Nintendo, the the evolution not referenced in their of Nintendo's accused expert reports. controllers, and the state of the art. It is relevant to rebut allegations of copying and to show the development history of the accused controllers. DX 89 This exhibit is only a Defendants are awaiting a Documents placeholder stating document from the custodian obtained from the "This exhibit will be of records certifying DX70, website The replaced with the which Defendants have Internet Archive certified copy when it is already provided to Plaintiff. (http://web.archiv received from the Upon receipt, Defendants e.org) Internet Archive." will provide a copy to Defendants have not Plaintiff. disclosed what this exhibit will be, therefore it is untimely. Also, this exhibit was not specifically disclosed in Defendants' notice of intent to offer certified records (Docket No. 245). Anascape reserves

TRIAL EXHIBIT

COURT RULING

Objection withdrawn.

Reserved.

Reserved.

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TRIAL EXHIBIT

DX 92 Internet pages on Robotron: 2084, Dezmelyk Rebuttal Ex. 28

OBJECTIONS its right to offer additional objections to this "exhibit" once Defendants have obtained and disclosed the certified copy. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6, not authenticated.

RESPONSE

COURT RULING

DX 93 Internet pages on Twin Rifles Arcade Game, Dezmelyk Rebuttal Ex. 30

DX 100 Model Airplane Remote Controllers, Dezmelyk Rebuttal Ex. 35

DX 101 Playstation Analog Joystick ("Flightstick") (Dep. Ex. 299)

This exhibit is offered not as invalidating prior art but to show evidence of the state of the art regarding the use of multiple joysticks. It was properly disclosed in conjunction with Mr. Dezmelyk's report. It is relevant to rebut allegations of copying. Defendants failed to This exhibit is offered not as timely identify or invalidating prior art but to produce this reference as show evidence of the state of required by P.R. 3-3, 3- the art regarding tactile 4, and 3-6, not feedback. It was properly authenticated. disclosed in conjunction with Mr. Dezmelyk's report. It is relevant to rebut allegations of copying. Defendants failed to Authenticity will be timely identify or established by a testifying produce this reference as witness. This exhibit is required by P.R. 3-3, 3- offered not as invalidating 4, and 3-6, not prior art but to show authenticated. evidence of the state of the art regarding the use of multiple joysticks. It was properly disclosed in conjunction with Mr. Dezmelyk's report. It is relevant to rebut allegations of copying. Not authenticated. DX101 is publicly available for purchase. This exhibit will be authenticated at trial. Additionally, this exhibit satisfies the requirements of FRE 901(b)(4).

Sustained as to authentication.

Sustained as to authentication.

Sustained as to authentication.

Sustained as to authentication.

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TRIAL EXHIBIT DX 102 Flightstick Pro, Dezmelyk Rebuttal Ex. 31

DX 113 Sega Dreamcast Controller (with rumblepack) (on sale 9/9/99)

DX 125 U.S. Patent No. 6,102,803 Dep. Ex. 304

DX 128

RESPONSE DX102 is publicly available for purchase. This reference is disclosed in the `700 patent under "Other Publications", where Mr. Armstrong admits that it is "prior art sold in stores." Defendants failed to DX113 is publicly available timely identify or for purchase. It is offered produce this reference as not as invalidating prior art required by P.R. 3-3, 3- but as evidence of the state 4, and 3-6, not of the art, and it was properly authenticated. disclosed in Defendants' 282 Notice. It is also relevant to show suitable non-infringing alternatives to the claimed controllers, which is probative of the hypothetical royalty under GeorgiaPacific's Factor 9. In addition, this exhibit will be authenticated at trial. This exhibit is proper pursuant to FRE Rules 702, 703, and 705. This patent covers one This patent is offered not as of Defendants' game invalidating prior art but to controllers. This exhibit show independent should be excluded development by Nintendo, under 403, as the jury the evolution of Nintendo's may be confused as to accused controllers, and the whether a controller that state of the art. It is relevant is covered by one patent to rebut allegations of can infringe another copying and to show the patent. Also, development history of the Defendants failed to accused controllers. The timely identify or potential "confusion" produce this reference as identified by Plaintiff is required by P.R. 3-3, 3- easily remedied and is not 4, and 3-6. the type contemplated by Rule 403. The jury instructions will explain to the jury how to determine infringement. This patent covers one This patent is offered not as

OBJECTIONS Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6, not authenticated.

COURT RULING Overruled.

Admissible to show suitable non-infringing alternative.Not admissible for invalidating prior art if not listed.

Overruled.

Overruled.

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TRIAL EXHIBIT U.S. Patent No. 7,040,986 Dep. Ex. 313

OBJECTIONS of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. This patent issued too late to be considered as prior art. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

DX 129 U.S. Patent No. 6,872,139 NAA0001689616927

DX 130 U.S. Patent No. 6,811,489 B1 NAA0001685316895

This patent covers one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. This patent issued too late to be considered as prior art. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This patent issued too late to be considered as prior art. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

RESPONSE invalidating prior art but to show independent development by Nintendo and the evolution of Nintendo's accused controllers. It is relevant to rebut allegations of copying and to show the development history of the accused controllers. It was properly disclosed in Defendants' 282 Notice. The potential "confusion" identified by Plaintiff is easily remedied and is not the type contemplated by Rule 403. The jury instructions will explain to the jury how to determine infringement. See response from DX128.

COURT RULING

Overruled.

This patent is offered not as invalidating prior art but to show independent development by Nintendo and the evolution of Nintendo's accused controllers. It was properly disclosed in Defendants' 282 Notice. It is relevant to rebut

Overruled.

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TRIAL EXHIBIT

DX 131 JPA No. 254134042 NAA0001485914871

DX 132 U.S. Patent No. 5,207,426 NAA000070457056

DX 133 U.S. 2007/0066394 Patent Application

RESPONSE allegations of copying and to show the development history of the accused controllers. The translation of this This patent is offered not as a document has not been basis for expert testimony authenticated. but to show independent Furthermore, this development by Nintendo, document was not cited the evolution of Nintendo's in Defendants' expert accused controllers, and the reports, thus, its experts state of the art. It is relevant cannot rely on this to rebut allegations of document. copying and to show the development history of the accused controllers. Authenticity will be established at trial. This patent covers one This patent is offered not as of Defendants' game invalidating prior art but to controllers. This exhibit show independent should be excluded development by Nintendo, under 403, as the jury the evolution of Nintendo's may be confused as to accused products, and the whether a controller that state of the art. It was is covered by one patent properly disclosed in can infringe another Defendants' 282 Notice and patent. Also, is relevant to rebut Defendants failed to allegations of copying and to timely identify or show the development produce this reference as history of the accused required by P.R. 3-3, 3- controllers. The potential 4, and 3-6. "confusion" identified by Plaintiff is easily remedied and is not the type contemplated by Rule 403. This patent application This patent is offered not as features one of invalidating prior art but to Defendants' game show independent controllers. This exhibit development by Nintendo should be excluded and the evolution of under 403, as the jury Nintendo's accused may be confused as to controllers. It is relevant to whether a controller that rebut allegations of copying is covered by one patent and to show the development can infringe another history of the accused

OBJECTIONS

COURT RULING

Sustained as to authentication. (Authenticate at trial).

Overruled.

Overruled.

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TRIAL EXHIBIT

OBJECTIONS patent.

DX 134 U.S. 2007/0050597 Patent Application

DX 135 U.S. D559,254 S

This patent application features one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. This design patent covers one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

RESPONSE controllers. The potential "confusion" identified by Plaintiff is easily remedied and is not the type contemplated by Rule 403. See response from DX133.

COURT RULING

Overruled.

See response from DX133.

Overruled.

DX 136 U.S. Patent No. 4,687,200

DX 137 U.S. Patent No. 5,184,830

This patent is offered not as Overruled. invalidating prior art but to show independent development by Nintendo, the evolution of Nintendo's accused controllers, and the state of the art. It was properly disclosed in Defendants' 282 Notice. It is relevant to rebut allegations of copying and to show the development history of the accused controllers. Defendants failed to This patent is offered not as Overruled. timely identify or invalidating prior art but to produce this reference as show independent required by P.R. 3-3, 3- development by Nintendo, 4, and 3-6. the evolution of Nintendo's

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TRIAL EXHIBIT

OBJECTIONS

DX 138 U.S. Patent No. 5,207,426

DX 139 U.S. Patent No. 5,396,225

DX 140 U.S. Patent No. 5,552,799 DX 141 U.S. Patent No. 5,602,569 DX 142 U.S. Patent No. 5,963,196

DX 143 U.S. Patent No. 5,984,785

Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This patent covers one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Also, Defendants failed to

RESPONSE COURT RULING accused controllers, and the state of the art. It was properly disclosed in Defendants' 282 Notice. It is relevant to rebut allegations of copying and to show the development history of the accused controllers. See response from DX137. Overruled.

See response from DX137.

Overruled.

See response from DX137.

Overruled.

See response from DX137.

Overruled.

See response from DX137.

Overruled.

This patent is offered not as invalidating prior art but to show independent development by Nintendo, the evolution of Nintendo's accused controllers, and the state of the art. It was properly disclosed in Defendants' 282 Notice. It is relevant to rebut allegations of copying and to show the

Overruled.

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TRIAL EXHIBIT

OBJECTIONS timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

DX 144 U.S. Patent No. 6,155,926

DX 145 U.S. Patent No. 6,482,010 dated 11/19/02 MSANAS0007345

RESPONSE development history of the accused controllers. The potential "confusion" identified by Plaintiff is easily remedied and is not the type contemplated by Rule 403. Defendants failed to This patent is offered not as timely identify or invalidating prior art but to produce this reference as show independent required by P.R. 3-3, 3- development by Nintendo, 4, and 3-6. the evolution of Nintendo's accused controllers, and the state of the art. It was properly disclosed in Defendants' 282 Notice. It is relevant to rebut allegations of copying and to show the development history of the accused controllers. This patent issued too This exhibit is not being late to be considered asserted as prior art, but prior art, and thus may rather as showing the state of confuse the jury under the art and to rebut charges rule 403. This exhibit is of copying. As such, it was Defendants failed to timely disclosed in a notice timely identify or under 35 U.S.C. Section 282. produce this reference as required by P.R. 3-3, 34, and 3-6.

COURT RULING

Overruled.

Exhibit Withdrawn

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TRIAL EXHIBIT

DX 146 U.S. Patent No. D453,932

OBJECTIONS This patent issued too late to be considered prior art, and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6.

DX 147 U.S. Patent No. D522,011

DX 153 U.S. Patent No. 6,452,586 DX 177 Xbox 360 Annotated Internal Photographs DX 178 Microsoft Sidewinder 3D Pro Joystick (on sale 1996)

This patent issued too late to be considered prior art (issued 2006), and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6. This patent issued too See response from DX53. late to be considered prior art, and thus may confuse the jury under rule 403. Demonstrative without A foundation will be laid at foundation. trial.

RESPONSE This exhibit is not being asserted as prior art, but rather as showing the state of the art, to rebut charges of copying and to show value of Xbox controller features not claimed by Mr. Armstrong. As such, it was timely disclosed in a notice under 35 U.S.C. Section 282. The potential "confusion" identified by Plaintiff is easily remedied and is not the type contemplated by Rule 403. See response from DX146.

COURT RULING Exhibit Withdrawn

Exhibit Withdrawn

Exhibit Withdrawn

Exhibit Withdrawn

This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6,, not authenticated.

The exhibit will be authenticated through live witness testimony. This exhibit is not offered as invalidating prior art, and Defendants have agreed not to use the exhibit as such. Instead, this exhibit is offered for the following

Overruled.

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TRIAL EXHIBIT

OBJECTIONS

RESPONSE COURT RULING reasons: (a) Rebut Copying: Based on Plaintiff's willfulness position in opposition to Defendants' motion for summary judgment, Mr. Armstrong's deposition testimony, and Anascape's inclusion of a jury instruction on copying, it is expected that Plaintiff will argue at trial that Mr. Armstrong through a meeting in 1999 taught Microsoft how to make the accused controllers and that Microsoft copied based on that meeting. This exhibit shows that prior to that meeting, Microsoft had already developed its own game controllers having many of the features of the later accused Xbox controllers. Microsoft's own history and expertise in developing game controllers prior to that meeting, including this exhbit, is highly relevant to rebut this false charge by Anascape that Microsoft copied from Mr. Armstrong. (b) Show State of the Art: This exhibit also shows the state of the art for game controllers. (c) Non-infringing alternatives: In an interrogatory response, Anascape has admitted that this game controller does not infringe the asserted claims. Thus, it is relevant to show suitable non-infringing alternatives to the claimed

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TRIAL EXHIBIT

OBJECTIONS

DX 179 Microsoft Sidewinder Game Pad (on sale 10/96) DX 180 Microsoft Sidewinder Force Feedback Pro Joystick (on sale 9/97) DX 181 Microsoft Sidewinder Dual Strike (on sale 11/99)

DX 182 Microsoft Sidewinder Freestyle Pro (on

This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6,, not authenticated. This exhibit is See response from DX178. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6,, not authenticated. This exhibit is See response from DX178. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 34, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. This exhibit is See response from DX178. Defendants failed to timely identify or produce this reference as

RESPONSE COURT RULING controllers, which is probative of the hypothetical royalty under GeorgiaPacific's Factor 9. Because this exhibit is not offered to show invalidating prior art but instead for other reasons, Anascape's objection that the exhibit was not disclosed under P.R. 3-3, 3-4, and 3-6 (which relate to invalidity documents), is not applicable. See response from DX178. Overruled.

Overruled.

Overruled.

Overruled.

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TRIAL EXHIBIT sale 11/98)

OBJECTIONS required by P.R. 3-3, 34, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. DX 183 This exhibit is Microsoft Defendants failed to Sidewinder Game timely identify or Pad Pro dated produce this reference as 5/99 (on sale required by P.R. 3-3, 311/99) (controller) 4, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. DX 199 Only shows the front "Fundamentals of cover of the book, and is Interactive therefore incomplete. Computer Hearsay, and Graphics" by J.D. Defendants failed to Foley and A. Van timely identify or Dam, Dezmelyk produce this reference as Rebuttal Ex. 27 required by P.R. 3-3, 34, and 3-6. Not authenticated, use of the transcription of a DX 229 voicemail is a violation 4/6/04 Voice-mail of the best evidence (transcribed) from rule. Brad Armstrong to Todd Holmdahl (MS-ANAS 175225) DX 244 Demonstrative without

RESPONSE

COURT RULING

See response from DX178.

Overruled.

This document is offered not as invalidating prior art but to show the state of the art regarding use of multiple input devices. The complete book will be made available for inspection at trial. The exhibit will be authenticated through live witness testimony, and is the best evidence available of this voicemail. The original recording was destroyed in the ordinary course of business, without bad faith. See Fed. R. Evid. 1004(1). Expert will lay the

Sustained.

Exhibit Withdrawn

Make

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TRIAL EXHIBIT Chart--Top 20 "Biggest Buzz" Wii Games, Ugone Ex. 4 DX 245 Chart--Games Released at the Launch of Wii, Ugone Ex. 5 DX 246 Chart--Scenario I: "All Asserted Claims" or "Only Claim 19" Are Found to Be Valid and Infringed, Ugone Ex. 7 DX 247 Chart--Scenario II: "All Asserted Claims Except Claim 19" Are Found to Be Valid and Infringed, Ugone Ex. 8 DX 256 Martinez Summary Exhibit 4: U.S. Market Share DX 257 Martinez Summary Exhibit 5 (AF) DX 258 Martinez Summary Exhibit 6: Demand Drive DX 259 Martinez

OBJECTIONS foundation.

RESPONSE COURT RULING foundation for this Rule 1006 objection at expert summary. trial. Expert will lay the Make foundation for this Rule 1006 objection at expert summary. trial. Expert report will be Make removed. Expert will lay the objection at foundation for this Rule 1006 trial. expert summary.

Demonstrative without foundation.

Attached expert report, which the Court specifically excluded. If just chart, it is a demonstrative without proper foundation. Attached expert report, which the Court specifically excluded. If just chart, it is a demonstrative without proper foundation. Demonstrative without proper foundation.

Expert report will be Make removed. Expert will lay the objection at foundation for this Rule 1006 trial. expert summary.

Demonstrative without proper foundation.

Demonstrative without proper foundation.

Demonstrative without proper foundation.

Defendants' expert will testify at trial regarding the foundation for this Rule 1006 expert summary and will explain its preparation and significance to the jury. Defendants' expert will testify at trial regarding the foundation for this Rule 1006 expert summary and will explain its preparation and significance to the jury. Defendants' expert will testify at trial regarding the foundation for this Rule 1006 expert summary and will explain its preparation and significance to the jury. Defendants' expert will testify at trial regarding the

Exhibit Withdrawn

Exhibit Withdrawn

Exhibit Withdrawn

Exhibit Withdrawn

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TRIAL EXHIBIT OBJECTIONS Summary Exhibit 7: Licensed Anascape Patents and Applications DX 261 Demonstrative without March 1998 proper foundation. Spreadsheet of royalties paid to Metamorfyx (MSANAS 17522124) DX 291 Hearsay. "The Ultimate Game Cube FAQ" (Ex 351)

RESPONSE COURT RULING foundation for this Rule 1006 expert summary and will explain its preparation and significance to the jury. The exhibit is not merely a Exhibit demonstrative but constitutes Withdrawn documentary evidence. It will be authenticated through live witness testimony at trial. DX291 is offered not for the truth of the statements therein but to establish the substance of the Plaintiff's research. It is relevant to invalidity and noninfringement. The periodical is selfauthenticating under Fed. R. Evid. 902(6). Reserved.

DX 310 CNN.com Holiday Buying Guide article dated December 14, 1999.

Hearsay, not authenticated, Defendants failed to timely identify or produce this reference as The exhibit is not offered for required by P.R. 3-3, 3- the truth of the matter 4, and 3-6. asserted, and even if it were, is admissible as a present sense impression by a witness who is reporting on his review of game controllers available on the market at a given point in time. The exhibit is not being asserted as prior art, but rather as showing the state of the art. The controller in this article was produced by Mad Catz, a company once owned in whole or part by Kelly Tyler, a partner in Anascape who will be called as a live witness at trial by at least Anascape. The exhibit is not being

Sustained as to authentication.

DX 311 MadKatz Defendants failed to

Overruled.

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TRIAL EXHIBIT OBJECTIONS Dual Force timely identify or Controller produce this reference as required by P.R. 3-3, 34, and 3-6, not authenticated.

DX 312 Letter from Zappacosta to Armstrong dated 10/26/93 ANS0039044-45

Not authenticated, Hearsay, Prejudice under Rule 403, Confusion under Rule 403.

DX 313 Letter from Armstrong to Zappacosta dated 11/8/93 ANS0039039-40

Hearsay, Prejudice under Rule 403, Confusion under Rule 403.

RESPONSE asserted as prior art, but rather as showing the state of the art. This controller was produced by Mad Catz, a company once owned in whole or part by Kelly Tyler, a partner in Anascape who will be called as a live witness at trial by at least Anascape. Authenticity will be established by a testifying witness. The document is offered not for the truth of the matter asserted but as evidence of what was communicated to the Plaintiff. DX312 is relevant to the validity and value of the claimed invention, and its probative value outweighs any Rule 403 concerns. This document is a party admission and not hearsay. The author of this document will be available at trial for cross-examination. DX313 is relevant to the validity and value of the claimed invention, and its probative value outweighs any Rule 403 concerns.

COURT RULING

Sustained as to authentication. Sustained as to hearsay.

Overruled.

So ORDERED and SIGNED this 2 day of May, 2008.

___________________________________ Ron Clark, United States District Judge

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