United States District Court, D. Delaware
W.L. GORE & ASSOCIATES, INC., Plaintiff,
C.R. BARD, INC., and BARD PERIPHERAL VASCULAR, INC., Defendants.
LEONARD P. STARK UNITED STATES DISTRICT COURT.
Wilmington this 8th day of February, 2017, having reviewed
the parties' proposed pretrial order ("PTO"),
including briefing on various motions in limine
("MIL") (D.I. 692-697), IT IS HEREBY ORDERED that:
Court will hear argument at the pretrial conference
("PTC") on Plaintiffs MIL #4, to exclude evidence
and argument relating to previous litigation.
Plaintiffs MIL #5, to exclude evidence and argument relating
to discovery disputes, is GRANTED IN PART. It would be
improper, irrelevant, unfairly prejudicial, and confusing to
the jury for the parties to refer to or re-fight discovery
disputes at trial. Any minimal probative value there may be
would be substantially outweighed by the countervailing
concerns of Federal Rule of Evidence 403. Where relevant, the
parties will be permitted to make reference to the timing
with which an expert was provided with particular evidence -
and how that evidence did (or did not) impact the
expert's analysis and opinion - but without stating or
suggesting to the jury that such production was late,
untimely, or in any manner improper.
Plaintiffs MIL #6, to preclude arguments that are purportedly
contrary to the Court's claim construction, is DENIED.
The Court is not persuaded that the arguments Plaintiff has
identified - based on slides Defendants intended to use in
their opening statement when trial was scheduled to begin in
December 2015 - are contrary to the Court's claim
construction. To the extent Plaintiff is concerned about jury
instructions, the Court will resolve disputes as to the
proper instructions during trial.
Defendants' MIL #4, to exclude evidence or argument
relating to Defendants' LifeStream Stent Grafts, is
GRANTED. Plaintiffs allegations as to the "apparent
infringement" of the patent-in-suit by these stent
grafts are untimely and unsupported by evidence in the
record. Permitting Plaintiff to do as it proposes would be
unfairly prejudicial to Defendants - who have had no
incentive or opportunity in this action to develop
non-infringement evidence relating to these products - and
confusing to the jury, concerns that substantially outweigh
whatever minimal probative value this evidence might have.
Plaintiffs contention that Defendants are responsible for the
lack of evidence in the record relating to these products is
unpersuasive given that at no point has Plaintiff sought
relief relating to such discovery (an understandable
decision, given that these products were not marketed in the
United States during the term of the patent-in-suit).
Defendants' MIL #5, to exclude certain license
agreements, is DENIED. The Court is not persuaded that
Federal Rule of Evidence 408 requires prohibiting the
parties' experts, and the jury, from considering, as part
of their damages analysis, license agreements that were
negotiated by Defendants against a backdrop of litigation.
See AstraZeneca AB v. Apotex Corp., 782 F.3d 1324,
1336 (Fed. Cir. 2015) ("[T]here is no per se
rule barring reference to settlements simply because they
arise from litigation."); ResQNet.com, Inc. v.
Lansa, Inc., 594 F.3d 860, 872 (Fed. Cir. 2010)
("This court observes as well that the most reliable
license in this record arose out of litigation.");
Dynetix Design Sols., Inc. v. Synopsys, Inc., 2013
WL 4537838, at *7 (N.D. Cal. Aug. 22, 2013); Fenner
Invs., Ltd. v. Hewlett-Packard Co., 2010 WL 1727916, at
*3 n.2 (E.D. Tex. Apr. 28, 2010) (citing cases).
Defendants' concerns can be adequately addressed through
cross-examination and the presentation of competing evidence.
Court will hear argument at the PTC on Defendants' MIL
#6, to preclude Plaintiff from introducing evidence or
argument concerning Plaintiffs trade secret litigation
against G. Ray Martin, a former employee of Plaintiff and of
Certain disputes raised in the proposed PTO are resolved as
A. (PTO p. 5) Defendants' proposal, that specific
exhibits to be used for cross-examination need not be
disclosed the day before a witness is expected to testify, is
B. (PTO p. 21) The Court will require a new version of
proposed jury instructions to be filed no later than the
first day of trial, which shall reflect all of the
Court's rulings to that point, be the product of the
parties' further efforts to reduce their disputes, and
will clearly and succinctly identify any remaining disputed
language and the basis for each sides' positions.
parties shall be prepared to address at the PTC all other
disputed matters that are raised in the PTO and not resolved
here, including: limitations on use of testimony from prior
litigations; objections to witnesses; whether marking will be
tried to the jury; opinions of counsel; and whether damages
and/or willfulness should be phased (i.e., the jury would
hear evidence, argument, and instructions on damages and/or
willfulness only if and after it determines infringement of a
valid patent claim).
Court will hear argument at the PTC on the parties'
motions to preclude expert testimony (D.I. 654, 657).
Each side has been allocated eighteen (18) hours for its
presentation in the forthcoming ...