Yesterday, Judge Williams issued an opinion ruling on motions in limine for the trial starting next week in Cirba Inc. (d/b/a DENSIFY) v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del.) (a case we've discussed several times before).
In it, he addressed several MILs. These opinions are always interesting, but given all of the recent discussion of litigation funding, I thought Judge Williams' order on the plaintiff's litigation funding MIL is worth noting.
Plaintiffs in the case moved in limine to preclude reference to their litigation funding arrangements:
With respect to Plaintiffs motion in limine number 3, Plaintiff requests that the Court exclude arguments, testimony, and other evidence about . . . its investors, [and] litigation funding . . . .
The Court denied the motion as to the core litigation funding issues:
As to the first and second requests, evidence about Plaintiffs investors and litigation funding is admissible because they are relevant to the value of the asserted patents. Funding arrangements are also relevant when assessing the credibility and biases of witnesses. . . . VMware, however, may not make prejudicial or inflammatory statements about Plaintiffs investors and litigation funding, such as "improper riffs on individuals' wealth and imagined motives."
This is an issue that I may come up more often, with all of the activity on the litigation funding front lately. Of course, the other district court judges may not go the same way on this.
Other MILS
I almost always find that MIL opinions are worth reading, since they are short and sweet and can have a big impact on how parties actually try cases. There are a couple of other points worth noting in this opinion.
The Court granted a motion to preclude discussion of attorneys' fees:
As to the third request, discussions or evidence of Plaintiffs and VMware's attorneys' fees would be unfairly prejudicial to present to the jury, and therefore, are excluded under Federal Rule of Evidence 403.
The Court found that "non-practicing entity" is not a derogatory term for a company that literally does not sell products, and denied a motion to exclude that term:
As to the fourth request, VMware does not oppose this motion as it pertains to the following pejorative terms: "troll," "patent troll," or "patent assertion entity." . . . However, VMware contends that it should not be precluded from referencing Cirba IP, Inc. ("IP") as a non-practicing entity with no products. . . . Plaintiff objects to VMware wanting to call IP a "a non-practicing entity with no products" because it "falsely tell[s] the jury that the plaintiff is IP." . . . This is incorrect. First, IP "does not sell or offer for sale products and services." . . . Second, nothing in this Court's motion in limine ruling requires Plaintiff to falsely tell the jury that the plaintiff in this action is IP. Rather, Plaintiff must tell the jury that the plaintiff is "Cirba Inc. (d/b/a/ Densify), as successor-in-interest to IP," who in this action may only assert the claims of IP, which is a company that does not make or sell anything. . . . As such, Plaintiffs motion in limine number 3 is GRANTED as to uses of the terms "troll," "patent troll," or "patent assertion entity," but DENIED as to the use of "non-practicing entity with no products," so long as VMware's use of this term does not create a narrative that mischaracterizes Plaintiffs business model.
Honestly, I would have been surprised at a different outcome. "Non-practicing entity with no products" is just a way to describe an entity that doesn't practice its patent and has no products. I don't think it's the Court's job to keep bad facts from the jury.
The Court addressed a few other MILs as well. It granted a MIL to exclude reference prosecution history, reexamination proceedings, and PTAB proceedings. It also precluded defendant VMWare from telling the jury that the PTO initially rejected the asserted patent over a VMWare patent.
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