United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
action for patent infringement, Plaintiff Acantha, LLC
accuses Defendants DePuy Synthes Sales, Inc., DePuy Synthes
Products, Inc., DePuy Synthes, Inc., Johnson & Johnson,
Inc., Synthes, Inc., Synthes USA, LLC, DePuy Orthopaedics,
Inc., and DePuy Spine, LLC of infringing its patent: U.S.
Reissued Patent No. RE43, 008 (the ‘008 Patent). The
parties filed numerous motions in limine in
anticipation of trial. Here the court memorializes the
rulings made on the motions during the pretrial conference,
held on May 16, 2018, and addresses the motions the court
took under advisement.
Acantha's motion in limine number 1
seeks to exclude any argument, reference, or suggestion
sounding in fraud or misrepresentation, or otherwise
suggesting impropriety by Acantha during reissue proceedings.
Acantha's motion is GRANTED, subject to
Defendants' appropriate use of such evidence for
impeachment of witnesses. To the extent Acantha believes this
testimony goes beyond impeachment purposes, it may object and
the court will address the issue at that time.
Acantha's motion in limine number 2
seeks to exclude any use, for any purpose, of prior art
references not identified in Defendants' invalidity
contentions. Defendants are directed to disclose the prior
art references they intend to use to Acantha in advance. The
parties may bring any remaining dispute they may have to the
court's attention the day the prior art reference will be
used. At that time, the court will issue a ruling.
Acantha's motion in limine number 3
seeks to exclude any argument or expert testimony that
Defendants' elected prior art reference United States
Patent No. 6, 258, 089 (“Campbell”) is entitled
to a priority date earlier than May 19, 1999. Specifically,
Acantha seeks to prevent Defendants from entering the
Campbell provisional application as an exhibit. During the
final pretrial conference, the parties agreed that the issue
will not be argued at trial absent a ruling on the
evidentiary issue of admissibility.
Acantha's motion in limine number 4
seeks to exclude any use of Defendants' patents, and any
argument that Defendants can avoid infringement because they
have their own patents or licenses to some prior art. During
the pretrial conference, the court concluded Defendants could
not mention the fact that they own patents in their opening
statement, though the court will reconsider this ruling on
the morning of trial. In all other respects, Defendants are
to alert Acantha in advance about the patents they intend to
use. The parties may bring any remaining dispute they may
have to the court's attention the day the patents will be
referenced. The court will take the issue up in the context
in which it arises during trial.
Acantha's motion in limine number 5
seeks to exclude any mention of Acantha dropping or electing
to pursue fewer asserted claims of the ‘008 Patent or
the court dismissing claims or defenses. The motion is
GRANTED. The court precludes any discussion
in front of the jury of the court's prior ruling
requiring that Acantha pursue fewer asserted claims.
Acantha's motion in limine number 6
seeks to exclude any reference or suggestion to adverse
financial or legal consequences that Defendants may
experience as a result of ...