Chief Judge Stark today issued a memorandum order addressing MILs and setting procedures for an August 14 remote bench trial in a single-patent competitor case about gas water heaters.
These kinds of pre-trial opinions are often interesting because they are issued so close to trial and can have such a big effect. Interesting points:
- He denied all 5 MILs. These include MILs to preclude or exclude:
- Testing data and other evidence as inconsistent with claim construction
- Evidence or argument regarding a new construction of an unconstrued term, although he will construe it later if needed (citing O2 Micro)
- Evidence of a non-infringing alternative; the fact that the NAI was never marketed was not dispositive
- Expert testimony re: apportionment, even though it wasn't clear where some opinions were disclosed; the Court denied those portions of the motion without prejudice so that the objections could be raised in context
- Expert testimony re: interpretation of a claim term, because it was disclosed during discovery
- He accepted the parties' proposal that all time used arguing and deciding objections will be charged to the losing party
- Any objections to demonstratives/exhibits not raised at the start of each day are waived
- The Court permitted 12 hours per side (the parties asked for 14) in a one-patent case
- The Court and parties will discuss further remote trial procedures at the PTC
It will be interesting to see whether the Court posts a public dial-in number for the trial like Judge Andrews did (which seemed to work, other than the inability to see demonstratives).
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