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Liqwd, Inc. v. L'Oreal USA, Inc.

United States District Court, D. Delaware

June 26, 2019

LIQWD, INC. and OLAPLEX LLC, Plaintiffs,
v.
L'ORÉAL USA, INC., L'ORÉAL USA PRODUCTS, INC., L'ORÉAL USA S/D, INC., and REDKENS 5TH AVENUE, NYC, L.L.C., Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge.

         This matter is before the Court on the following motions filed by plaintiffs0F[1]:

         A. Plaintiffs' motion in limine No. 2 to preclude reference to or use of post grant review proceedings relating to the patents in suit, D.I. 805-2, p. 199.

         B. Plaintiffs' motion in limine No. 3 to preclude reference to L'Oréal's patents as evidence of non-infringement, D.I. 805-2, p. 558.

         C. Plaintiffs' motion in limine No. 4 to preclude use of alleged “false advertising” posts or accounts beyond those specifically identified in L'Oréal's pleadings and expert reports, D.I. 805-2, p. 572.

         D. Plaintiffs' motion in limine No. 5 to preclude defendants from referring to or reliance on matters dismissed from the Amended Counter-Complaint pursuant to Rule 12(b)(6) or from asserting claim construction arguments rejected in the claim construction order, D.I. 805-2, p. 588.

         DISCUSSION

         A. Plaintiffs' motion in limine No. 2 to preclude reference to or use of post-grant review proceedings relating to the patents in suit, D.I. 805-2, p. 199.

         Plaintiffs argue that defendants “should be precluded from referencing or using at trial any Post Grant Review (“PGR”) proceedings or decisions regarding the Patents-in-Suit, including reference or use of any decision that issues between now and trial.” D.I. 805-2 at 200. Defendants contend this is part of the intrinsic and the extrinsic evidence and might go to the issue of willfulness. An appeal from the patent office to the Federal Circuit is still active and pending. The Court agrees that this is inadmissible evidence to the extent that the parties want to talk about the “proceedings.” See Hologic, Inc. v. Minerva Surgical, Inc., 2018 WL 3348998, at *4 (D. Del. July 9, 2018) (issuing order in limine “because the patent office proceeding and decision are not binding and are on appeal, the prejudicial and confusing effect of the evidence almost certainly outweighs any probative value”). There will be no references to any of these proceedings during trial. However, the Court will allow information that occurred in these proceedings if it is relevant and not unduly prejudicial, if the parties do not refer to the holdings of these proceedings. Leonard v. Stemtech Health Scis., Inc., 981 F.Supp.2d 273, 276 (D. Del. 2013) (“Evidentiary rulings, especially ones 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.” (citations omitted)). This District has recently recognized that it is entirely permissible for “evidence that has been developed in [a post-grant patent office proceeding, such as a PGR] - including testimonial as well as documentary evidence - [to] be used at trial, provided that it is done without referencing the [proceeding].” Siemens Mobility Inc. v. Westinghouse Air Brake Techs. Corp., No. 16-284-LPS, 2019 WL 77046, at *1 (D. Del. Jan. 2, 2019).

         B. Plaintiffs' motion in limine No. 3 to preclude reference to L'Oréal's patents as evidence of non-infringement, D.I. 805-2, p. 558.

         This motion is denied as moot pursuant to the summary judgment memorandum and order, D.I. 903, at 35 and 37 determining this issue in favor of the plaintiffs.

         C. Plaintiffs' motion in limine No. 4 to preclude use of alleged “false advertising” posts or accounts beyond those specifically identified in L'Oréal's pleadings and expert reports, D.I. 805-2, p. 572.

         Plaintiffs contend that defendants should be precluded from using evidence or the existence of “fake” online posts or online accounts which were not identified by the expert report of Peter Smith. Plaintiffs argue there is no specificity regarding the false advertisements alleged by defendants. See D.I. 650. Defendants have not identified the specific evidence used to support this claim, assert plaintiffs.

         Defendants contend that there will be no “unfair surprise” as all burner accounts and posts are listed on their exhibit list. Failure to disclose such claims does negatively affect the strategy ...


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