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Evolved Wireless, LLC v. Apple, Inc.

United States District Court, D. Delaware

March 7, 2019

EVOLVED WIRELESS, LLC, Plaintiff,
v.
APPLE INC., Defendant. EVOLVED WIRELESS, LLC, Plaintiff,
v.
HTC CORPORATION and HTC AMERJCA, INC., Defendants. EVOLVED WIRELESS, LLC, Plaintiff,
v.
LENOVO GROUP LTD., LENOVO (UNITED STATES) INC., and MOTOROLA MOBILITY, Defendants. EVOLVED WIRELESS, LLC, Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD. and SAMSUNG ELECTRONICS AMERICA, INC. Defendants. EVOLVED WIRELESS, LLC, Plaintiff,
v.
ZTE (USA) INC., Defendant. EVOLVED WIRELESS, LLC, Plaintiff,
v.
MICROSOFT CORPORATION, MICROSOFT MOBILE OY and NOKIA INC., Defendants.

          MEMORANDUM AND ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the following motions in limine: defendant Apple Inc.'s (“Apple”) motion in Limine No. 1 to exclude irrelevant and prejudicial unrelated matters involving Apple (D.I. 409 in 1:15cv542); defendants Apple Inc.'s, Samsung Electronics America Inc.'s, and Samsung Electronics Co. Ltd.'s (“Samsung”) joint motion in limine (D.I. 411 in Evolved Wireless, LLC (“Evolved”) v. Apple, 1:15cv542 and D.I. 403 in Evolved v. Samsung, 1:15cv545); and plaintiff Evolved's motion in limine (D.I. 415).[1]

         I. LAW

         Although the motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings, performing a gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate the impact of the evidence. Id.

         “Evidentiary rulings made by a trial court during motions in limine are preliminary and may change depending on what actually happens at trial.” Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000); see also Leonard v. Stemtech Health Scis., Inc., 981 F.Supp. 2d 273, 276 (D. Del. 2013) (noting that evidentiary rulings, especially those that encompass broad classes of evidence, should generally be deferred until trial to allow for the resolution of questions of foundation, relevancy, and potential prejudice in proper context).

         II. DISCUSSION

         A. Apple's Motion in Limine To Exclude Irrelevant and Prejudicial Unrelated Matters Involving Apple (D.I. 409)

         Apple seeks exclusion of evidence of alleged past misconduct and the alleged poor character of Apple or Steve Jobs as irrelevant and unfairly prejudicial. Defendants state that Apple's motion is specific to an exhibit produced in this litigation-an excerpt of a PBS documentary titled “Triumph of the Nerds” featuring Apple's co-founder Steve Jobs. In the documentary, Mr. Jobs states that “[Apple] ha[s] always been shameless about stealing great ideas.” Apple also seeks exclusion of prior unrelated litigations, investigations or accusations involving Apple or Mr. Jobs, arguing the evidence is irrelevant, unfairly prejudicial and may confuse the jury. The court grants the defendant's motion in limine to the PBS documentary excerpt.

         Regarding other unspecified evidence characterized as “Apple-bashing, ” evidentiary rulings “that encompass broad classes of evidence should generally be deferred until trial to allow for the resolution of questions of foundation, relevancy, and potential prejudice in proper context.” Hologic, No. 15-1031-JFB-SRF, D.I. 452 at 1. Apple's failure to specify the evidence or testimony to be excluded means deny without prejudice to reassertion.

         In regards of reputation for litigiousness - it will be necessary to introduce evidence of Apple's prior litigation to explain the risk-adjusted purchase price, as contemplated by Dr. Putnam. That risk included the possibility that Evolved Wireless would be unable to license the asserted patents to Apple absent a finding of infringement and validity following lengthy and costly litigation.

         III. DEFENDANTS' JOINT MOTION IN LIMINE (D.I. 411)

         A. Motion In Limine No. 1: To Preclude Evolved From Offering Evidence Regarding How Evolved Arrived At Its $0.25 Per-Device Figure

         Defendants seek an order precluding Evolved from offering evidence as to the derivation of its $0.25 royalty rate in pre-suit licensing negotiations. This topic was the subject of a motion to compel and two Federal Rule of Civil Procedure 30(b)(6) depositions. Defendants contend Evolved's two designated witnesses provided no or limited meaningful information about Evolved's derivation of the $0.25 figure. Evolved asserted privilege as to much of the information about a previously-undisclosed, purported “starting-point rate.” The record shows the defendants moved to compel answers after the first 30(b)(6) deposition and the magistrate judge granted the motion.

         Evolved designated a different 30(b)(6) witness in response to the magistrate judge's order. The defendants contend that the second witness gave a few limited answers beyond what the first witness had provided, but still failed to provide adequate testimony on the issue of the $0.25 figure. Defendants argue that Evolved again asserted privilege and work product instructions to selectively shield from discovery most aspects of Evolved's formulation of the amount. Defendants also deposed Matt DelGiorno, counsel for Evolved who had engaged in the pre-suit negotiations with the defendants, but he too refused to answer numerous questions regarding the $0.25 figure. There is no indication that the defendants moved to compel after the second 30(b)(6) deposition DelGiorno deposition.

         In response, Evolved states it will not offer or rely on privileged communications. Also, it argues the defendants' motion should be denied for failing to specifically identify the evidence they seek to exclude.

         The Court finds Evolved's statement, that it will not elicit testimony or present evidence on the challenged topic essentially renders the defendants' motion, moot. Evolved Wireless should be permitted to testify as to non-privileged information consistent with the deposition testimony and evidence already given in this case. The defendant's argument for a more expansive order of preclusion is unavailing because the defendants failed to move to compel at the time or to challenge the assertions of privilege. Without knowing specifically what the evidence is and what it is proffered for, the Court cannot make a determination as to the precise parameters of the admission of this evidence, if any. Accordingly, the motion will be denied at this time, without prejudice to reassertion at trial.

         B. Motion In Limine No. 2: Preclude Dr. Cooklev and Evolved From Arguments, Evidence, and Testimony Regarding Infringement Under the Doctrine of Equivalents

         The defendants assert that Evolved did not articulate a theory of infringement under the Doctrine of Equivalents (“DOE”) during fifteen months of fact discovery and two rounds of infringement contentions other than to state that the defendants infringe “either by literal infringement or infringement under the doctrine of equivalents” in their final infringement contentions. It asserts that Evolved for the first time asserted a DOE theory for the “dedicated preamble” limitation of U.S. Patent No. 7, 809, 373 (“the ‘373 Patent”) in the Infringement Report of Dr. Todor Cooklev (“Cooklev Report”) on May 22, 2017-more than a month after the close of fact discovery and nearly three months after Defendants had served their Final Invalidity Contentions.

         In response, Evolved contends that consistent with its Final Infringement Contentions, Evolved Wireless included an express, substantial analysis of DOE infringement in Dr. Cooklev's opening expert report, and the defendants' experts rebutted Dr. Cooklev's analysis in their responsive reports. Also, the defendants also deposed Dr. Cooklev on this issue.

         This issue is addressed in the Court's order on the defendants' motion for a summary judgment of noninfringement. The Court finds Evolved sufficiently put the defendants on notice of its theories of infringement under the doctrine of equivalents. The defendants have not demonstrated prejudice as a result of any untimely disclosure. The Court finds the defendants' motion to preclude argument and evidence on the theory should be denied.

         C. Motion In Limine No. 3: To Exclude Any Testimony Regarding Evidence of, or Reference to, the PTAB'S Decision Not to Institute IPR Proceedings against the '373 Patent

         Defendants expect Evolved to reference the Patent Trial and Appeal Board's (“PTAB”) decision not to institute inter partes review (“IPR”) proceedings against the '373 patent as evidence of validity of the '373 patent. The Court should exclude any reference to the PTAB decisions regarding the '373 patent because it is not relevant.

         Evolved contends the fact the PTAB declined to institute IPR proceedings-a finding that the defendants failed to demonstrate a reasonable likelihood of invalidity under the lower standard applied by the PTAB is highly probative of validity and should be heard by the jury. It also argues the evidence is relevant to willfulness.

         Because willfulness is no longer at issue Evolved's argument that the IPR denial is relevant to intent and state of mind is unavailing. Generally, the Court is inclined to find that because the patent office's proceeding and decision are not binding and are on appeal, the prejudicial and confusing effect of the evidence almost certainly outweighs any probative value, at least with respect to the merits. The denial to institute proceedings has no estoppel effect and the minimal probative value it may have to the validity issue is substantially ...


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