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ABS Global, Inc. v. Inguran, LLC

United States District Court, W.D. Wisconsin

July 25, 2016

ABS GLOBAL, INC., Plaintiff/Counterclaim Defendant,
INGURAN, LLC, Defendant/Counterclaimant/Third-Party Plaintiff, and XY, LLC, Intervening Defendant/Counterclaimant/Third-Party Plaintiff, and CYTONOME/ST., LLC, Intervening Defendant,
GENUS PLC, Third-Party Defendant.


         This order addresses defendants’ motions in limine (dkt. #488), motion to exclude witnesses and documents disclosed after close of discovery (dkt. #444), defendants’ objection to ABS’s § 282 notice (dkt. #509), and the parties’ joint jury questionnaire (dkt. #519), as well as a revised process for streamlining objections to exhibits and deposition designations.

         A. Defendants’ Motions in Limine (dkt. #488)

         1. Irrelevant ST and/or XY litigation.

         Defendants request that the court bar references to litigation involving ST and/or XY, arguing that it would be irrelevant, prejudicial and a waste of time. In particular, they seek to bar evidence of these four cases: (1) Semex Alliance v. Elite Dairy Genomics, LLC, NO. 3:14-cv-87 (S.D. Ohio); (2) XY, LLC v. Ottenberg, 11-CV-2920-RBJ-KMT (D. Colo.); (3) Colo. State Univ. Research Found v. XY, LLC (D. Colo.); and (4) Monsanto Co. v. XY, Inc., No. 4:06-cv-992 (E.D. Mo.). ABS objects, contending that defendants’ prior litigation may be relevant to ABS’s antitrust claim, in particular for purposes of impeaching a witness with prior testimony.

         In the abstract, the court agrees with ABS that some limited evidence of these past lawsuits may prove relevant to its antitrust claim, as well as for purposes of impeachment, but because neither party provides concrete examples, it is not yet possible to evaluate whether specific evidence or testimony may be overly prejudicial. Accordingly, the court RESERVES ruling on this motion. During the final pretrial conference, both sides should be prepared to offer concrete examples of evidence claimed to be relevant to plaintiff’s antitrust claim or an appropriate subject of impeachment.

         2. References to ST or XY as “litigious” or any similar characterization.

         Defendants seek to exclude any evidence or characterization that either ST or XY is “litigious, ” a “frequent filer” or similar criticism as both irrelevant and prejudicial. ABS contends that ST and XY’s litigiousness is highly probative of measures taken to keep out prospective entrants to the U.S. sexed semen processing market.

         As previously discussed, part of ABS’s antitrust claim is that ST has maintained its market position by threatening litigation against potential competitors. Most of the cases ST cites in support of excluding evidence of other litigation are in contexts where a party’s litigiousness are not a relevant issue, but rather are offered for an improper or overly prejudicial purpose under the Rules of Evidence. See, e.g., Gay v. Chandra, No. 05-CV-0150-MJR-DGW, 2009 WL 2868398, at *2 (S.D. Ill. Sept. 4, 2009) (deeming plaintiff’s litigiousness irrelevant and allowing evidence of other lawsuits only for purposes of impeachment); Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776, 775-77 (7th Cir. 2001) (finding plaintiff’s discrimination claim and other litigation only marginally relevant and highly prejudicial); Eng v. Scully, 146 F.R.D. 74, 79 (S.D.N.Y. 1993) (excluding plaintiff’s prior litigation as an inmate under Rule 403).

         ST does cite one case in the patent context, Kinetic Concepts, Inc. v. Bluesky Med. Corp., No. SA-03-CA-0832-RF, 2006 WL 6505348 (W.D. Tex. May 31, 2006), in which the plaintiffs sought and were granted an order barring any references to other lawsuits brought by the plaintiff on the ground that such evidence was irrelevant. Id. at *3-4. Even in that case, however, the court did permit the defendants to submit evidence of plaintiffs’ motivation in filing the present suit as relevant to proving plaintiff’s belief that they were entitled to own the market, and this despite the fact defendant had dismissed its antitrust claims. Id. at *3.

         ABS has sufficiently argued the probative nature of what it would characterize as ST and XY’s litigiousness with respect to asserting the exclusivity of sexing technology under its U.S. patent portfolio, but the relevance is limited to the merits of ABS’s antitrust claim alone and the court will not allow such evidence to result in satellite litigation on each such lawsuit. Accordingly, the court will DENY ST and XY’s motion, with the caveat that ABS must tread carefully with respect to this evidence by requiring an advance proffer and precluding any argument as to defendants so-called “litigiousness” until closing argument and even then only with respect to ABS’s antitrust claim.

         3. Argument that any patents owned by ABS negate infringement of the patents asserted by ST in this case.

         ST seeks to bar ABS from referring to patents related to ABS’s GSS technology as part of its non-infringement defense, claiming that ABS’s patents are irrelevant and potentially confusing to any infringement inquiry in this case given that it would be possible for the GSS technology to include features patented by ABS while simultaneously infringing defendants’ patents. In response, ABS argues that its own patents are relevant in two ways. First, they are a possible defense to infringement should ST argue under the doctrine of equivalents. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 493 F.3d 1368, 1379-80 (Fed. Cir. 2007) (“when a device that incorporates the purported equivalent is in fact the subject of a separate patent, a finding of equivalency, while perhaps not necessarily legally foreclosed, is at least considerably more difficult to make out”); Glaxo Wellcome, Inc. v. Andrx Pharms., Inc., 344 F.3d 1226, 1233 (Fed. Cir. 2003) (existence of a separate patent on the accused product “may be weighed by the district court, particularly if there is an issue of ‘insubstantial’ change with respect to equivalency”). Second, ABS’s patents related to GSS technology support its antitrust claim. Specifically, ABS argues that evidence of its patents show that it has taken steps to enter the market that have been thwarted as a result of ST’s anticompetitive actions, and thus that ABS suffered damages.

         The first concern would appear best dealt with by a jury instruction from the court should a specific patented technology bar or limit any doctrine of equivalence claim. The second is again difficult to assess in the abstract, including whether the evidence should be limited to the damages phase of trial. Accordingly, the court will RESERVE and await specific proffers at the final pretrial conference.

         4. Any per se violations of the antitrust laws or statutes, particularly on patent acquisitions.

         Defendants’ request that the court prohibit ABS from referring to per se violations of antitrust laws or statutes because such statements: (1) constitute instructions on the law that the court must provide; and (2) could confuse and mislead the jury as to ABS’s burden of proof. Not only does ABS agree with ST, the court has already ruled as much. Still, ABS would like to argue that it is “unlawful exclusionary conduct for a monopolist to acquire exclusive rights to patents relating to its monopoly.”

         In its summary judgment opinion, the court held that evidence of patent acquisitions by a monopolist is suggestive of anticompetitive conduct, but that such conduct is not, as a matter of law, unlawful. Even if it were, the court will instruct the jury on the law. Accordingly, while ABS may argue that ST’s patent acquisitions constituted anticompetitive behavior on the facts here, ABS may not refer to or argue that regardless of the scope, or ST’s intended use or purpose, ST’s acquisitions are, in and of themselves, unlawful. Accordingly, the court will GRANT defendants’ motion with respect to plaintiffs’ use of the term per se and to any equivalent argument.

         5. Inter partes review proceedings of the ‘920 and ‘425 patents.

         ST seeks to exclude evidence of IPR proceedings of the ‘920 and ‘425 patents, which are currently pending on appeal before the Federal Circuit. XY, LLC v. ABS Global, Inc., Case 16-1897 (Fed. Cir. 2016). In support, ST correctly points out that the court has stayed proceedings related to these two patents. It further states that because of the stay, ST and XY have yet to develop arguments related to these patents, meaning they have not conducted depositions or conducted discovery specific to the claims in those patents since the court granted the stay. Thus, ST argues it would be grossly unfair to permit ABS to submit evidence related to those proceedings. Moreover, ST asserts the probative value of the IPRs is limited.

         While ABS contends that the IPR proceedings are relevant to its antitrust claim, the court still concludes that evidence of the IPR proceedings carries a high risk of undue prejudice and confusion, both because the standards involved in IPR proceedings are different and because the IPR proceedings have yet to be resolved. See Personalized Media Comms., LLC v. Zynga, Inc., No. 2:12-CV-00068-JRG, 2013 WL 10253110, at *1 (E.D. Tex. Oct. 30, 2013) (“While the pending Inter Partes Review may have some relevance, the Court finds that the danger of undue prejudice is extremely high and that danger cannot be mitigated simply by the use of a limiting instruction.”) (citations omitted). Accordingly, the motion is GRANTED absent ABS proposing some straightforward statement of which the court might take judicial notice as to the fact of inter partes proceedings involving the parties with respect to two other patents, and the existence of other patent disputes between ST and other bull studs.

         6. Appeals to local prejudice, including any reference to XY or ST as “out-of-towners, ” “foreigners, ” or “out-of-state defendants, ” and reference to ABS or Genus as “locals.”

         ABS essentially stipulates to this motion in limine unless it would preclude reference to ABS being a Madison-based company or to some of its witnesses living in the Madison area and working in DeForest. Similarly, ABS argues that because the 2012 Agreement is governed by Texas law and ST and XY are based there, it should be able to make these points. At the same time, ABS states that it has “no intention of making emotional arguments” to the jury concerning ST and XY being “foreigners, ” which is good since any reference by either side of the nature that is the subject of this motion will result in a swift curative instruction and disapprobation before the jury.

         Accordingly, the motion will be GRANTED, and the court will also include this as a subject of inquiry during voir dire.

         7. Any drug possession or sale investigation concerning an ...

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