Judge Andrews Puts Accused Infringer on Notice that "If It Causes a Mistrial by Poor Preparation or Poor Judgment in Questioning [Certain Witnesses], It Will, at a Minimum, Have to Pay [the Patentee's] Attorney Fees"

In a pair of orders last week in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del.), Judge Andrews set out guidelines for the trial testimony of two fact witnesses, who will offer testimony at trial regarding some prior art references (among other things).

The procedural background here is surprising. The patentee moved in limine to exclude the testimony of these witnesses, and the Court addressed the motion at a pre-trial status conference. There, the Court directed that the parties depose the witnesses and that the accused infringer submit proffers of the testimony that will be offered at trial.

That a Lot of Briefing

The parties then filed a stipulation setting …