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Acantha LLC v. DePuy Orthopaedics Inc.

United States District Court, E.D. Wisconsin

May 30, 2018

ACANTHA LLC, Plaintiff,
v.
DEPUY ORTHOPAEDICS INC., et al., Defendants.

          ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         In this 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.

         1. Acantha's motion in limine number 1

         Acantha 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.

         2. Acantha's motion in limine number 2

         Acantha 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.

         3. Acantha's motion in limine number 3

         Acantha 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.

         4. Acantha's motion in limine number 4

         Acantha 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.

         5. Acantha's motion in limine number 5

         Acantha 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.

         6. Acantha's motion in limine number 6

         Acantha seeks to exclude any reference or suggestion to adverse financial or legal consequences that Defendants may experience as a result of ...


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