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DSM IP Assets, B.V. v. Lallemand Specialties, Inc.

United States District Court, W.D. Wisconsin

April 25, 2018

DSM IP ASSETS, B.V. & DSM BIO-BASED PRODUCTS & SERVICES, B.V., Plaintiffs and Counter-Defendants
v.
LALLEMAND SPECIALTIES, INC. & MASCOMA LLC, Defendants and Counterclaimants.

          ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         The court held a final pretrial conference today, hearing argument on defendants' motion for reconsideration and reserved motions in limine, and directing the parties to file supplemental briefing on certain issues. The purpose of this order is to memorialize those rulings.

         IT IS ORDERED that:

         1) DSM's MIL No. 6 is GRANTED, except that defense counsel may introduce the fact of Professor Alper's taking over Professor Stephanopoulos's role in this case and what he examined to begin his work. If Professor Stephanopoulos's name comes up, the jury will be informed that a severe illness necessitated his replacement with Professor Alper.

         2) The reserved portion of Lallemand's MIL No. 3 is GRANTED as moot.

         3) As to the reserved portion of Lallemand's MIL No. 5, plaintiffs may have until Tuesday, May 1, 2018, to file a brief proffer regarding Firestart's relevance to this case, if any. Lallemand may respond by May 3. Otherwise, plaintiffs' expert may rely on LAL00198968 only as evidence that Lallemand believed that DSM might become a competitor with respect to industrial GMO yeast.

         4) Further, defendants' concerns about late production of documents are moot at this point in light of plaintiffs' representation that the produced documents only concern Firestart.

         5) The court clarified that under its ruling on DSM's MIL No. 3, defendants may introduce evidence related to the proper use of the Blomberg assay. The court will reconsider defendants' ability to argue that Blomberg assay is capable of measuring GPD2 activity, as opposed to GPD1 activity or a combination of GPD1 and GPD2 activity.

         6) Contrary to the written opinion (dkt. #228), Lallemand's MIL No. 14 is GRANTED, unless defendants open the door.

         7) Lallemand may renew its MIL No. 13 (to trifurcate) at the end of the liability phase at trial.

         8) At trial, motions in limine result in standing objections; parties do not need to object again at trial if previously denied in the court's MIL rulings.

         9) Plaintiffs will have until Tuesday, May 1, to address whether the court may exercise discretion in deciding whether Aaron Argyros may be called adversely live, rather than be presented via video deposition designations under Rule 32(a)(3) as a manager of an opposing party.

         10) Defendants shall have until the end of the day on Friday, April 27, to brief and propose changes to the introductory jury instructions. Plaintiffs shall have until the end of the day on Monday, April 30, to respond.

         11) Plaintiffs may have until the end of the day Friday, April 27, to propose changes and brief the last two sentences in the prior art and obviousness closing instructions. Defendants shall ...


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