Judge Richard G. Andrews recently considered the motions in limine included in the pretrial order filed in advance of trial. AVM Technologies LLC v. Intel Corporation, No. 15-33-RGA (D. Del. Apr. 19, 2017). Judge Andrews granted AVM’s motion in limine to exclude references to decisions or orders from plaintiff’s prior lawsuits and reserved decision on whether to preclude the use of testimony of AVM’s expert from prior litigation, who are not experts in this case. Judge Andrews determined that the probative value of any prior litigation evidence would be substantially outweighed by unfair prejudice. Id. at 1-2. Regarding the expert testimony, Judge Andrews determined that the testimony might be permissible, “with the proviso that the experts cannot be identified as being AVM’s experts in prior litigation.” Id. at 2. Ultimately, Judge Andrews reserved decision until he could review the proposed testimony and discuss the issue at the upcoming pretrial conference. Id.
Judge Andrews also granted Intel’s motion in limine to exclude evidence that the circuit patented in Intel’s patent copies the asserted patent. Id. at 4. Judge Andrews noted that although AVM argued “that the ‘941 patent and related testimony show that Intel ‘knowingly employed delay and simultaneous activation’ in the accused circuits[,]” AVM did not actually allege that the circuit in question is accused of infringement or that its experts have opinions regarding the circuit. Id.
UPDATE: Judge Andrews reviewed the proposed testimony regarding the expert testimony from prior litigation. Judge Andrews excluded the testimony finding that it was cumulative and unfair. Technologies LLC v. Intel Corporation, No. 15-33-RGA (D. Del. Apr. 28, 2017). “A deposition of this sort, that is, of an expert expected to testify at a trial six months later, is one-sided. It is mostly a cross-examination, with no direct, and with little incentive for redirect.” Id.at 2. Moreover, Judge Andrews determined that “there is substantial risk that the jury will understand the testimony as indicating inconsistency in AVM’s positions. I think it is clear that an independent expert . . . is not an agent of AVM. Thus, his testimony cannot be offered to prove AVM’s inconsistency. Clearly, though, that is the main reason intel wants to offer the evidence.” Id. (internal citations omitted).