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Here's a great quote from the Judge today from the transcripts from Steve Kim, the judge is talking about 10-15 people in attendance running for the exits probably to make trades and spread the word when the royalty question came up
An interesting quote from the Judge today.
THE COURT: Good afternoon, ladies and gentlemen.
MR. NELSON: Good afternoon, your Honor.
MR. BROTHERS: Good afternoon.
THE COURT: Another question from the jury. "If a running royalty rate is determined, are we to apply the rate to a certain figure for each defendant?" Signed the foreperson. Your response, Mr. Brothers? There's a stampede back there.
Read more: http://vringo.freeforums.net/index.cgi?board=general&action=display&thread=149#ixzz2BPRwUwxk
It's a T1 Halt which is news pending
http://www.nasdaqtrader.com/trader.aspx?id=TradeHalts
Thank You!! Please keep us updated tomorrow if you go, Will probably be a great day with Carbonell. Thanks again
Here is a little snipet of Steve Kims article from today I suggest you pay the $1.50 everyday and read them he gets the transcripts from court so there is alot to read and very insightful:
Dr. Frieder’s Summary
“
I went through in great length and great detail using lots of information, using information that basically came from an external oriented documents, Google documents but meant for the external public, advertisers. I went through documents that basically are internal to Google. I went through e--mail. I
flew to attend a deposition. I read other deposition transcripts.
I looked at source code. And the bottom line is that the claims
asserted on Google and the others, they are infringing on the 420
patent that I described in detail.”
Discussion of Dr. Carbonell
Google makes a strategic mistake here, by asking Dr. Frieder if he
is aware of Dr. Carbonell, to which Dr. Frieder responds that Dr.
Carbonell is one of the foremost experts.
My guess is that Dr. Frieder made a positive and lasting impression on the jury. Google stumbled in its cross exam by
somewhat clumsily opening the door for Dr. Frieder (1) to bolster
Dr. Carbonell’s testimony as a premier worldwide expert before he
testifies, and (2) to talk about validity of the patents, to the extent that USPTO has said is valid, and Dr. Carbonell thought it
was valid. Google tried to object to and strike this testimony, but the Court declined, ruling that Google brought this testimony
on to itself by the questions it asked. Overall, this was another
good day for Vringo. They needed Dr. Frieder to complete his testimony without running into any major problems, and he did not
run into any obvious problems. Google’s cross seems to have suffered from the same malady as its opening statement, which is
getting “too” technical to be followed by lay persons
What trail were they on?
Pacer Update:
JURY TRIAL (DAY #3) held on 10/18/2012 before District Judge Raymond A. Jackson. Attorneys Kenneth Brothers, Jeffrey Sherwood, Frank Cimino, Jr., Charles Monterio, and W. Ryan Snow appeared on behalf of the Plaintiff. Andrew Perlman, Corporate Representative present. Attorneys David Nelson, David Perlson, Emily OBrien and Stephen Noona, appeared on behalf of defendants AOL, Inc., Google Inc., IAC Search & Media, Inc., Gannett Company, Inc., and Target Corporation. Petit jurors (9) appeared pursuant to adjournment last evening 10/17/12. Comments of Court and counsel re: sealing of courtroom for testimony on proprietary information. Public notice to be posted. Plaintiff continued presentation of evidence witnesses sworn and testified. Video deposition of Jon Diorio, Gary Holt and Bartholomew Furrow shown to the jury. Plaintiffs Exhibits introduced and admitted into evidence. Objections heard and rulings made on the record. Court adjourned until Friday, 10/19/12 at 10:00 a.m. Jury Trial continued to 10/19/2012 at 10:00 AM in Norfolk Courtroom 4 before District Judge Raymond A. Jackson. (Court Reporter Sharon Borden, OCR (a.m.) and Jody Stewart, OCR (p.m.).)(ptom) (Entered: 10/18/2012)
They will settle before trial because they need to protect their customers first and foremost, Google doesn't want to leave their customers fate up to the jury
New Pacer Update: If there wasnt a settlement coming why would they not argue this?
REPLY IN SUPPORT OF MOTION TO DISMISS
In an effort to reduce the number of pleadings in the case, Defendants will forego a Reply in Support of Defendants’ Motion to Dismiss all Claims Against AOL Inc., Gannett Inc., IAC
Search & Media, Inc. and Target Corporation (D.N. 293).
DATED: October 11, 2012
Yeah I don't think there's a chance of that happening here. I've been following stsi for years and was pretty upset it happened like that not really fair for everyone they said details of settlement will be in their next 10k so I doubt it was a big settlement or royalties
Thats a totally different scenario i've followed them for years they lost all their cases against rj reynolds since 2001 and took it to the cafc (appeals) but found the patents were valid but werent infringed upon and tried to take it all the way to the supreme court then back in January RJ requested a settlement hearing to recoup costs of all those years of lawyer fees. Then all of a sudden it seems they both walked away? They are under a gag order currently and neither one of them can talk. That will never happen here
pacer.gov yesterday google gave their proposed verdict and today i/p engine gave theirs
Hahaha that's a good one, I wish we could!
Also filed tonight was a motion to expedite the reconsideration so they can have an answer by Monday since trial starts Tuesday
Also new on pacer:
Proposed VERDICT FORM
INSTRUCTIONS
1. When answering the following questions and filling out this Verdict Form, please follow these directions and the directions provided throughout the form.
2. All questions must be answered, unless the specific instructions for a question indicate the question should not be answered.
3. Your answer to each question must be unanimous.
4. Answer questions 1-6 by writing either “Yes” or “No” in the blank space provided.
5. Answer question 7 by writing the appropriated dollar amount in the blank space provided.
6. Please refer to the Jury Instructions for guidance on the law applicable to the subject matter covered by each question.
I. INFRINGEMENT
Has I/P Engine proven, by a preponderance of the evidence, that Google infringed claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent?
Question No. 1 - Infringement by Google
Answer “Yes” or “No” for each claim.
Claim 10: ___________
Claim 14: ___________
Claim 15: ___________
Claim 25: ___________
Claim 27: ___________
Claim 28: ___________
Has I/P Engine proven, by a preponderance of the evidence, that Google infringed claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent?
Answer “Yes” or “No” for each claim.
Claim 1: ____________
Claim 5: ____________
Claim 6: ____________
Claim 21: ___________
Claim 22: ___________
Claim 26: ___________
Claim 28: ___________
Claim 38: ___________
If the answer to any of the foregoing in Question 1 is “Yes”, then answer the following question:
Has I/P Engine proved, by clear and convincing evidence, that Google willfully infringed the patent claims which you have found to be infringed? Answer “Yes” or “No”:
_____________
Has I/P Engine proven, by a preponderance of the evidence, that AOL infringed claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent?
Question No. 2 - Infringement by AOL
Answer “Yes” or “No” for each claim.
Claim 10: ___________
Claim 14: ___________
Claim 15: ___________
Claim 25: ___________
Claim 27: ___________
Claim 28: ___________
Has I/P Engine proven, by a preponderance of the evidence, that AOL infringed claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent?
Answer “Yes” or “No” for each claim.
Claim 1: ____________
Claim 5: ____________
Claim 6: ____________
Claim 21: ___________
Claim 22: ___________
Claim 26: ___________
Claim 28: ___________
Claim 38: ___________
If the answer to any of the foregoing in question 2 is “Yes”, then answer the following question:
Has I/P Engine proved, by clear and convincing evidence, that AOL willfully infringed the patent claims which you have found to be infringed? Answer “Yes” or “No”:
_____________
Has I/P Engine proven, by a preponderance of the evidence, that IAC infringed claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent?
Question No. 3 - Infringement by IAC
Answer “Yes” or “No” for each claim.
Claim 10: ___________
Claim 14: ___________
Claim 15: ___________
Claim 25: ___________
Claim 27: ___________
Claim 28: ___________
Has I/P Engine proven, by a preponderance of the evidence, that IAC infringed claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent?
Answer “Yes” or “No” for each claim.
Claim 1: ____________
Claim 5: ____________
Claim 6: ____________
Claim 21: ___________
Claim 22: ___________
Claim 26: ___________
Claim 28: ___________
Claim 38: ___________
Has I/P Engine proven, by a preponderance of the evidence, that Gannett infringed claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent?
Question No. 4 - Infringement by Gannett
Answer “Yes” or “No” for each claim.
Claim 10: ___________
Claim 14: ___________
Claim 15: ___________
Claim 25: ___________
Claim 27: ___________
Claim 28: ___________
Has I/P Engine proven, by a preponderance of the evidence, that Gannett infringed claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent?
Answer “Yes” or “No” for each claim.
Claim 1: ____________
Claim 5: ____________
Claim 6: ____________
Claim 21: ___________
Claim 22: ___________
Claim 26: ___________
Claim 28: ___________
Claim 38: ___________
Has I/P Engine proven, by a preponderance of the evidence, that Target infringed claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent?
Question No. 5 - Infringement by Target
Answer “Yes” or “No” for each claim.
Claim 10: ___________
Claim 14: ___________
Claim 15: ___________
Claim 25: ___________
Claim 27: ___________
Claim 28: ___________
Has I/P Engine proven, by a preponderance of the evidence, that Target infringed claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent?
Answer “Yes” or “No” for each claim.
Claim 1: ____________
Claim 5: ____________
Claim 6: ____________
Claim 21: ___________
Claim 22: ___________
Claim 26: ___________
Claim 28: ___________
Claim 38: ___________
II. VALIDITY
Have Defendants proven, by clear and convincing evidence, that claims 10, 14, 15, 25, 27 or 28 of the ‘420 patent are invalid? Answer “Yes” or “No” for each claim as to both Anticipation and Obviousness. A “Yes” for either means that you find the patent to be invalid.
Question No. 6 - Validity by Defendants
Claim 10: Anticipation __________ Obviousness __________
Claim 14: Anticipation __________ Obviousness __________
Claim 15: Anticipation __________ Obviousness __________
Claim 25: Anticipation __________ Obviousness __________
Claim 27: Anticipation __________ Obviousness __________
Claim 28: Anticipation __________ Obviousness __________
Have Defendants proven, by clear and convincing evidence, that claims 1, 5, 6, 21, 22, 26, 28 or 38 of the ‘664 patent are invalid? Answer “Yes” or “No” for each claim as to both Anticipation and Obviousness. A “Yes” for either means that you find the patent to be invalid.
Claim 1: Anticipation ___________ Obviousness __________
Claim 5: Anticipation ___________ Obviousness __________
Claim 6: Anticipation ___________ Obviousness __________
Claim 21: Anticipation __________ Obviousness __________
Claim 22: Anticipation __________ Obviousness __________
Claim 26: Anticipation __________ Obviousness __________
Claim 28: Anticipation __________ Obviousness __________
Claim 38: Anticipation __________ Obviousness __________
III. DAMAGES
Answer this question only if you have found infringement of at least one claim, and that at least one claim of the patents is valid. To what amount of damages has I/P Engine shown it is entitled for each of the Defendants’ past infringement?
Question No. 7 – Damages
Google: $_______________________________
AOL: $_______________________________
IAC: $_______________________________
Target: $_______________________________
Gannett: $_______________________________
Please have the foreperson apply today’s date, and sign on behalf of the jury.
We, the jury unanimously so find:
_______________________________________________
Today’s date: ______________________
New On Pacer:
MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR
REVIEW OF JUDGE LEONARD’S RULING ON PLAINTIFF I/P ENGINE, INC.’S
THIRD MOTION FOR DISCOVERY SANCTIONS REGARDING
UNTIMELY DISCOVERY RESPONSES
Pursuant to 28 U.S.C. § 636 (b)(1)(A) and Fed. R. Civ. P. 72(a), plaintiff I/P Engine, Inc.
(“I/P Engine”) moves the Court to reconsider Judge Leonard’s October 9, 2012 denial of I/P
Engine’s Third Motion for Discovery Sanctions. The motion is located at D.I. 282, the
memorandum in support of the motion is located at D.I. 368, Defendants’ response at D.I. 617,
and I/P Engine’s reply at D.I. 669.1
Judge Leonard’s Order (D.I. 697) provides no details of his reasoning for denying the
motion. Based on his comments at the hearing, however, it appears Judge Leonard was treating
I/P Engine’s motion to strike untimely discovery responses as a motion to compel, because he
asked questions about the parties’ meet and confer before the original September 4 responses
were served by Defendants. I/P Engine’s motion does not relate to the sufficiency of the
September 4 interrogatory responses. Instead, I/P Engine’s motion sought to strike Defendants’
1 The unsealed versions of the last three documents are located at D.I. 283, 521, and 651,
respectively.
1
supplemental responses served on September 14, after fact and expert discovery had closed, and
after Defendants had deposed I/P Engine’s expert on infringement. The violation of the Court’s
scheduling order is clear. See, e.g., D.I. 90 (scheduling order). Sohail v. Singh, 2010 U.S. Dist.
Lexis 103214 at *10-11 (E.D. Va. 2010) (“Courts routinely and appropriately exclude evidence
that is untimely and in violation of a scheduling order.”)
Judge Leonard’s ruling not only failed to consider Defendants’ violation of the Scheduling Order, but he disregarded the fact that Defendants’ supplemental production and
interrogatory responses are self-serving. They do not adequately respond to I/P Engine’s interrogatories or document requests. They serve only to ambush I/P Engine with information that was not made available to it during the discovery period. For example, I/P Engine’s interrogatories sought identification of all attribute templates used for certain functions.
Google’s supplemental responses do not do so. Instead, Google identifies only four attribute
templates and indicates that its list of four attribute templates is not complete. D.I. 372
(Google’s Supplemental Responses to Interrogatories 21 and 22).
Because Judge Leonard failed to consider the issues above, his Order is clearly in error
and should be reviewed. The Court should grant I/P Engine’s Third Motion for Discovery
Sanctions by excluding the untimely September 14, 2012 supplemental interrogatory responses
and related document production.
Yeah these were all the ones they set up under rule 10b5-1 between $4.25 and $30 they have set up to automatically sell at certain points it says it right on the bottom of the form 4's
Nothing yet ill update as soon as anything new hits the pacer
Another Pacer Update:
Case Reassigned to Magistrate Judge Douglas E. Miller. Magistrate Judge Tommy E. Miller no longer assigned to the case. (ecav, ) (Entered: 10/10/2012)
New Pacer Update:
Case Reassigned to Magistrate Judge Tommy E. Miller. Magistrate Judge Lawrence R. Leonard no longer assigned to the case. (ecav, ) (Entered: 10/10/2012)
It says anything that arises to assign to a different Magistrate, Magistrate Judge Leonard did the settlement conference
ORDER DIRECTING the Clerk to assign any matters which arise in this case to an alternate United States Magistrate Judge due to the undersigned U.S. Magistrate Judge having conducted a settlement conference and discussions in this matter. Because of the nature of the settlement discussions the undersigned cannot preside over any contested issues in this case. Entered and filed 10/9/12. (Signed by Magistrate Judge Lawrence R. Leonard on 10/9/12). (ecav, ) (Entered: 10/10/2012
New Pacer Update:
ORDER
The undersigned United States Magistrate Judge conducted a settlement conference in the above-styled matter. During the course of this conference, the undersigned conducted ex parte
discussions with the parties and expressed opinions on legal and factual issues. Because of the nature of these discussions, the undersigned cannot preside over any contested issues in this case.
Therefore, the Clerk is DIRECTED to assign any matters that arise in this case to an alternate United States Magistrate Judge.
The Clerk shall mail a copy of this Order to counsel of record for the parties and to the Courtroom Deputies for the Honorable Raymond A. Jackson and the undersigned.
IT IS SO ORDERED.
Lawrence
I like this part:
Specifically, as to the Plaintiffs Second Motion, the Court ORDERS the Defendants to produce to the Plaintiff within two days of entry of this Order data that has not been produced as to
Google, Inc.'s, revenues for its properties based in the United States and AUTHORIZES the Plaintiff to supplement the report of its damages expert, Dr. Stephen L. Becker, within two days
thereafter. Furthermore, the Defendants may not cross-examine Dr. Becker on the omission in his initial report of Google, Inc.'s, revenues for its properties based in the United States
New Pacer Update:
ORDER
On October 9, 2012, the Court heard oral argument on the Plaintiffs Second Motion for
Discovery Sanctions Regarding Untimely Discovery Responses, ECF 277, and its Third Motion
for Discovery Sanctions Regarding Untimely Discovery Responses, ECF 282. Jeffrey K.
Sherwood, Esq., arguing the Second Motion, and Frank C. Cimino, Jr., arguing the Third Motion,
represented the Plaintiff, and David L. Bilsker, Esq., arguing the Second Motion, and David A.
Perlson, Esq., arguing the Third Motion, represented the Defendants. The Official Court
Reporter was Sharon Borden.
After reviewing the parties' briefs, hearing argument, and for the reasons stated on the
record, the Court DENIES the Plaintiffs Third Motion and GRANTS in part and DENIES in part
the Plaintiffs Second Motion.
Specifically, as to the Plaintiffs Second Motion, the Court ORDERS the Defendants to
produce to the Plaintiff within two days of entry of this Order data that has not been produced as to
Google, Inc.'s, revenues for its properties based in the United States and AUTHORIZES the
1
Plaintiff to supplement the report of its damages expert, Dr. Stephen L. Becker, within two days
thereafter. Furthermore, the Defendants may not cross-examine Dr. Becker on the omission in
his initial report of Google, Inc.'s, revenues for its properties based in the United States.
Although the Court DENIES the Plaintiffs Second Motion as to certain e-mails and
information provided therein produced by the Defendants as Bates Nos. G-IPE-0888897,
G-IPE-0888898-99, G-IPE-0888900, and G-IPE-888901-02, the Plaintiff is AUTHORIZED to
supplement Dr. Becker's report to include these documents by Friday, October 12,2012.
Finally, the Court DENIES the Plaintiffs Second Motion as to the Defendants'
non-infringing alternatives contentions but AUTHORIZES the Plaintiff to supplement the report
of its infringement expert, Dr. Ophir Frieder, to include these contentions by Friday, October 12,
2012.
The Clerk is DIRECTED to mail a copy of this Order to all counsel of record.
IT IS SO ORDERED.
L
Meeting for what? Here is official court schedule
http://www.vaed.uscourts.gov/schedule/w-weeklynorfolk.html
Docket Update
AGREED ORDER OF DISMISSAL WITH PREJUDICE OF I/P ENGINE'S
CLAIMSRF.LATING TO AOL'S ADVERTTSING.COM SPONSORED LISTINGS
On this day, I/P Engine, Inc. and AOL Inc. announced to the Court that they have
settled I/P Engine's claims against AOL relating to AOL's Advertising.com Sponsored
Listings. The Court, having considered this request, is of the opinion that their request for
dismissal should be granted.
IT IS THEREFORE ORDERED that I/P Engine's claims for relief against AOL
relating to AOL's Advertising.com Sponsored Listings are dismissed with prejudice.
IT IS FURTHER ORDERED that all attorneys' fee, costs of court and expenses
relating to the dismissed claims shall be borne by each party incurring the same.
Dated: August 6,2012
Nothing new, I think because it's a holiday today
Those were all in the form 424B5 filed earlier today around 12pm all good investors saw them and wasnt a surprise and went up after it was released!
http://secfilings.nasdaq.com/filingFrameset.asp?FileName=0001144204%2D12%2D054842%2Etxt&FilePath=%5C2012%5C10%5C05%5C&CoName=VRINGO+INC&FormType=424B5&RcvdDate=10%2F5%2F2012&pdf=
Sales by Certain Directors and Executive Officers Pursuant to Rule 10b5-1 Plans
On October 3, 2012, pursuant to previously entered into pre-arranged trading plans that comply with Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), certain of our directors and executive officers exercised options to purchase a total of 257,332 shares of our common stock and warrants to purchase a total of 340,910 shares of our common stock and sold an aggregate of 625,222 shares of common stock at sales prices between $4.0018 and $4.250. The exercise of the options and warrants resulted in an aggregate of $606,374.92 proceeds to us.
I love this one too:
E. Defendants' Motion in Limine No. 5 to Preclude Plaintiff from Introducing
Evidence of Damages Against AOL Inc., Gannett Co., Inc., IAC Search &
Media, Inc., and Target Corporation
The Federal Circuit has held that "the parties that make and sell an infringing device are
joint tort-feasors with parties that purchase an infringing device for use or resale...." Shockley v.
Arcan Inc., 248 F.3d 1349,1364 (Fed. Cir. 2001). As a result, AOL, Gannett, IAC Search &
Media, and Target Corporation maybe be jointly and severally liable for any alleged
infringement with their co-defendant, Google, Inc. Furthermore, I/P Engine's damages expert,
Dr. Becker, has provided damages calculations as to AOL, Inc., Gannett Co., and Target
Corporation. Accordingly, Defendants' Motion in Limine No. 5 (ECF No. 307) is DENIED
This is what they just ruled on these numbers 1,3,4, 5, 7, 8, or 9:
PLAINTIFF I/P ENGINE, INC.’S
FIRST MOTION IN LIMINE TO EXCLUDE INADMISSIBLE EVIDENCE
Pursuant to Federal Rules of Evidence 401 through 403, Plaintiff I/P Engine, Inc. (“I/P
Engine”) moves this Court to preclude any evidence of, reference to, or suggestion of the
following topics in the trial of this case:
1. the recently filed reexamination of U.S. Patent No. 6,314,420;
2. recent offers and other negotiations for, and the 2011 purchase price of, the patent
portfolio that included the patents-in-suit;
3. the fee arrangement between I/P Engine and its counsel;
4. claim construction arguments that were not adopted by this Court;
5. claims that were previously included in this case but are no longer asserted, including
claims against Google Search and defendants AOL and IAC’s Ask Sponsored
Listings;
6. derogatory, inflammatory, confusing and irrelevant terms such as “patent troll,” “shell
corporation,” “paper patent” holder, or “non-practicing entity”;
Case 2:11-cv-00512-RAJ-LRL Document 314 Filed 09/21/12 Page 1 of 3 PageID# 6506
2
7. any testimony or opinions about evidence or any other subject beyond the scope of
the discussion and analysis in their expert report;
8. any reference to discussions or correspondence between counsel that did not go to the
Court, including discovery disputes, negotiations, claims of privilege, or motions for
relief sought but not granted; and
9. any reference to courtroom observers or jury consultants.
For the reasons set forth in the accompanying Memorandum in Support of Plaintiff I/P
Engine, Inc.’s First Motion in Limine to Exclude Inadmissible Evidence, precluding any
evidence of, reference to, or suggestion of these topics is the most effective way to ensure that
this irrelevant and prejudicial information is not considered at trial and does not confuse the jury
I. I/P Engine's Motions in Limine
A. Plaintiffs First Motion in Limine to Exclude Inadmissible Evidence
Having reviewed parties' arguments, the Court finds no legal basis to admit as evidence
documents/testimony identified in numbers 1,3,4, 5, 7, 8, or 9 of Plaintiff s motion.
Accordingly, Plaintiffs First Motion in Limine to Exclude Inadmissible Evidence (ECF No. 314)
1 Additional pre-trial motions are pending and will be addressed at a later date.
Case 2:11-cv-00512-RAJ-LRL Document 682 Filed 10/05/12 Page 1 of 5 PageID# 14956
as to these items is GRANTED. As to Item 2 (evidence concerning recent offers and other
negotiations for, and the 2011 purchase price of, the patent portfolio that included the patents-insuit)
and Item 6 (evidence concerning Plaintiffs failure to practice the inventions claimed in the
patents), consideration of the admissibility of these items is DEFERRED.
Docket Update!!
ORDER
Before the Court are three (3) Motions in Limine filed by I/P Engine, Inc. ("Plaintiff") to
exclude evidence from trial in the above-styled matter. Also before the Court are five (5)
Motions in Limine to exclude evidence filed by Defendants AOL Inc., Google Inc., Target
Corporation, IAC Search & Media, Inc. and Gannett Co., Inc. ("Defendants"). These matters
have been fully briefed by the Parties. The Court finds that oral arguments of these motions will
not aid its decisional process. Having reviewed the motions and related materials, the Court
finds these matters ripe for judicial determination. For the reasons stated herein, and pursuant to
the inherent authority to make evidentiary rulings prior to trial, see Luce v. United States, 469
U.S. 38,41 n.4 (1984), the Court resolves the Parties' Motions in Limine as outlined below.1
I. I/P Engine's Motions in Limine
A. Plaintiffs First Motion in Limine to Exclude Inadmissible Evidence
Having reviewed parties' arguments, the Court finds no legal basis to admit as evidence
documents/testimony identified in numbers 1,3,4, 5, 7, 8, or 9 of Plaintiff s motion.
Accordingly, Plaintiffs First Motion in Limine to Exclude Inadmissible Evidence (ECF No. 314)
1 Additional pre-trial motions are pending and will be addressed at a later date.
Case 2:11-cv-00512-RAJ-LRL Document 682 Filed 10/05/12 Page 1 of 5 PageID# 14956
as to these items is GRANTED. As to Item 2 (evidence concerning recent offers and other
negotiations for, and the 2011 purchase price of, the patent portfolio that included the patents-insuit)
and Item 6 (evidence concerning Plaintiffs failure to practice the inventions claimed in the
patents), consideration of the admissibility of these items is DEFERRED.
B. Plaintiffs Second Motion in Limine to Preclude Non-Comparable License
Agreements
The Court finds it appropriate to address this issue as it arises during the course of the
trial. Accordingly, consideration of Plaintiff s Second Motion in Limine to Preclude Non-
Comparable License Agreements (ECF No. 333) is DEFERRED.
C. Plaintiffs Third Motion in Limine to Exclude Improper Prior Art Evidence
Having reviewed parties' arguments, the Court finds witnesses Culliss, Ortega, and Rose
may be called as fact witnesses. However, the Court will carefully scrutinize any testimony from
these witnesses to ensure impermissible expert testimony is not introduced. Accordingly,
Plaintiffs Third Motion in Limine (ECF No. 335) is DENIED.
II. Defendants' Motions in Limine
A. Defendants' Motion in Limine No. 1 to Preclude Plaintiff from Introducing
Evidence on Willful Infringement, Pre-Suit Knowledge, or Copying
The Supreme Court and the Federal Circuit require "knowledge that the induced acts
constituted patent infringement" for claims of induced and indirect infringement. Global-Tech
Appliances, Inc. v. SEBS.A., 131 S. Ct. 2060, 2061 (2011); see also Dynacore Holdings Corp. v.
U.S. Philips Corp., 363 F.3d 1263, 1272 (Fed. Cir. 2004). Furthermore, although evidence of
copying is generally irrelevant in a patent case, evidence that an accused infringer "copied" the
patentee's invention or copies from the patent of the invention may be relevant to the issue of
willful infringement. See In re Hayes Microcomputer Prods., Inc. Patent Litig., 982 F.2d 1527,
2
Case 2:11-cv-00512-RAJ-LRL Document 682 Filed 10/05/12 Page 2 of 5 PageID# 14957
1543 (Fed. Cir. 1992) ("Whether the infringer intentionally copied the ideas of another" is a
relevant factor to a willfulness determination). In addition, the Federal Circuit has held that "to
establish willful infringement, a patentee must show by clear and convincing evidence that the
infringer acted despite an objectively high likelihood that its actions constituted infringement of
a valid patent. The state of mind of the accused infringer is not relevant to this objective inquiry.
If this threshold objective standard is satisfied, the patentee must also demonstrate that this
objectively-defined risk (determined by the record developed in the infringement proceeding)
was either known or so obvious that it should have been known to the accused infringer. In re
Seagate Tech., LLC, 497 F.3d 1360,1371 (Fed. Cir. 2007).
After reviewing the arguments on this motion, the Court finds that it must make a
determination at a later point as to whether Plaintiff adequately pled willful infringement or
might choose to later amend their pleadings to conform them to the evidence found at discovery
and presented at trial. Accordingly, Defendant's Motion in Limine #1 (ECF No. 299) is
DEFFERED.
B. Defendants' Motion in Limine No. 2 to Exclude Evidence of Entire Market
Value of Accused Products and of Defendants' Size, Wealth and Overall
Revenues
Although damage awards based on gross speculation may not be sustained, see Wordtech
Sys., Inc v. Integrated Networks Solutions, Inc., 609 F.3d 1308,1321-22 (Fed. Cir. 2010), a
district court may consider a hypothetical negotiation between a willing licensor and a willing
licensee as a tool to fix a royalty rate that is adequate to compensate a patentee for infringement.
Integra Lifesciences I, Ltd. v. Merck KGaA, 331 F.3d 860, 869-70 (Fed. Cir. 2003). As the
Federal Circuit has indicated in Lucent Techs, v. Gateway, Inc., 580 F.3d 1301, 1338-29 (Fed.
Cir. 2009), "[s]imply put, the base used in a running royalty calculation can always be the value
3
Case 2:11-cv-00512-RAJ-LRL Document 682 Filed 10/05/12 Page 3 of 5 PageID# 14958
of the entire commercial embodiment, as long as the magnitude of the rate is within an
acceptable range (as determined by the evidence)." See also Georgia-Pacific Corp. v. U.S.
Plywood Corp., 318 F. Supp.l 116 (S.D.N.Y.). I/P Engine is prepared to offer evidence at trial
that "patented technology forms a substantial basis of the consumer demand of the accused
products" and thus market share calculations may be relevant to a reasonable royalty calculation.
Accordingly, Defendants' Motion in Limine No. 2 is DENIED (ECF No. 301).
C. Defendants' Motion in Limine No. 3 to Exclude Marketing and High-Level
Non-Technical Materials Related To Historical Click-Through Rate
Federal Rule of Evidence 403 provides that "[although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." The Court finds that because it is
unclear precisely what materials would be excluded under Defendants' motion, the Court will
defer resolution of this motion until trial and Defendants' specific objection to materials Plaintiff
may seek to introduce. Accordingly, consideration of Motion in Limine No. 3 is DEFERRED
(ECF No. 303).
D. Defendants' Motion in Limine No. 4 to Preclude Plaintiff From Offering
Evidence or Argument Relating to Defendants' Conduct During Discovery or
to Google's Unproduced Licenses.
Generally, evidence of conduct during discovery should not be introduced to the jury
without leave of the Court. Given the outstanding sanctions motions in this case regarding
Defendants' conduct and its potential impact on the introduction of evidence and argument at
trial, as well as the broad and non-particularized nature of the motion, the Court finds it
appropriate to address this motion at trial. Accordingly, consideration of Defendants' Motion in
Case 2:11-cv-00512-RAJ-LRL Document 682 Filed 10/05/12 Page 4 of 5 PageID# 14959
Limine No. 4 is DEFERRED (ECF No. 305).
E. Defendants' Motion in Limine No. 5 to Preclude Plaintiff from Introducing
Evidence of Damages Against AOL Inc., Gannett Co., Inc., IAC Search &
Media, Inc., and Target Corporation
The Federal Circuit has held that "the parties that make and sell an infringing device are
joint tort-feasors with parties that purchase an infringing device for use or resale...." Shockley v.
Arcan Inc., 248 F.3d 1349,1364 (Fed. Cir. 2001). As a result, AOL, Gannett, IAC Search &
Media, and Target Corporation maybe be jointly and severally liable for any alleged
infringement with their co-defendant, Google, Inc. Furthermore, I/P Engine's damages expert,
Dr. Becker, has provided damages calculations as to AOL, Inc., Gannett Co., and Target
Corporation. Accordingly, Defendants' Motion in Limine No. 5 (ECF No. 307) is DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel and parties of
record.
IT IS SO ORDERED.
Norfolk, Virginia
October £ ,2012
Raymond A. OaclSon
United States District Judge
Here is all todays latest:
10/05/2012 Notice of Correction re 660 Stipulation. Counsel filed a pleading titled, "Stipulation and Proposed Order Withdrawing Certain Motions in Limine Pending before the Court". Proposed Orders have to be sent to the Clerk's Office in paper and not filed electronically as a pleading. If counsel's intent is to withdraw the motions that are stated in Doc. 660, a Motion to Withdraw is all that is needed, linking same back to the pertinent motions and the Stipulation is not necessary. (ecav, ) (Entered: 10/05/2012)
10/05/2012 664 MOTION to Strike Plaintiff's Deposition Designations by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 665 Memorandum in Support re 664 MOTION to Strike Plaintiff's Deposition Designations filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 666 Declaration re 665 Memorandum in Support of Emily O'Brien in Support of Defendants' Motion to Strike Plaintiff's Deposition Designations by IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 667 NOTICE by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation re 664 MOTION to Strike Plaintiff's Deposition Designations , Notice of Filing of Additional Exhibit to the Motion to Strike Plaintiff's Deposition Designations (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 668 MOTION to Expedite and Memorandum in Support of Motion to Expedite Briefing on Defendants' Motion to Strike Plaintiff's Deposition Designations by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 669 Sealed Plaintiff I/P Engine, Inc.'s Reply re 651 Reply to Motion re 282 MOTION for Sanctions Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by I/P Engine, Inc. (ecav, ) (Entered: 10/05/2012)
10/05/2012 670 Sealed Plaintiff I/P Engine, Inc.'s Reply re 651 Reply to Motion re 282 MOTION for Sanctions Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by I/P Engine, Inc. (ecav, ) (Entered: 10/05/2012)
10/05/2012 671 Sealed Exhibit 2 re 651 Reply to Motion re 282 MOTION for Sanctions Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by I/P Engine, Inc. (Attachments: # 1 Continuation of Sealed Exhibit 2, # 2 Continuation of Sealed Exhibit 2)(ecav, ) (Additional attachment(s) added on 10/5/2012: # 3 Letter) (ecav, ). (Entered: 10/05/2012)
10/05/2012 672 Motion to appear Pro Hac Vice by David Aaron Nelson and Certification of Local Counsel Stephen E. Noona Filing fee $ 75, receipt number 0422-3235417. by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 673 ORDER GRANTING 638 Motion for Sarah Agudo to appear as Pro hac vice for AOL Inc. Entered and filed 10/5/12. (Signed by District Judge Raymond A. Jackson on 10/5/12). (ecav, ) (Entered: 10/05/2012)
10/05/2012 674 ORDER GRANTING 639 Motion for Joshua Lee Sohn to appear as Pro hac vice for AOL Inc. Entered and filed 10/5/12. (Signed by District Judge Raymond A. Jackson on 10/5/12). (ecav, ) (Entered: 10/05/2012)
This case is called I/P Engine V. AOL for some reason on all documents and court records
This is official case record on Pacer:
2:11-cv-00512-RAJ-LRL I/P Engine, Inc. v. AOL, Inc. et al
Todays docket updates so far:
10/05/2012 Notice of Correction re 660 Stipulation. Counsel filed a pleading titled, "Stipulation and Proposed Order Withdrawing Certain Motions in Limine Pending before the Court". Proposed Orders have to be sent to the Clerk's Office in paper and not filed electronically as a pleading. If counsel's intent is to withdraw the motions that are stated in Doc. 660, a Motion to Withdraw is all that is needed, linking same back to the pertinent motions and the Stipulation is not necessary. (ecav, ) (Entered: 10/05/2012)
10/05/2012 664 MOTION to Strike Plaintiff's Deposition Designations by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 665 Memorandum in Support re 664 MOTION to Strike Plaintiff's Deposition Designations filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 666 Declaration re 665 Memorandum in Support of Emily O'Brien in Support of Defendants' Motion to Strike Plaintiff's Deposition Designations by IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 667 NOTICE by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation re 664 MOTION to Strike Plaintiff's Deposition Designations , Notice of Filing of Additional Exhibit to the Motion to Strike Plaintiff's Deposition Designations (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/05/2012)
10/05/2012 668 MOTION to Expedite and Memorandum in Support of Motion to Expedite Briefing on Defendants' Motion to Strike Plaintiff's Deposition Designations by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/05/2012)
Here is the court schedule for anyone interested:
http://www.vaed.uscourts.gov/schedule/w-weeklynorfolk.html
This is all that was on Pacer
Plaintiff and counterclaim defendant Star Scientific, Inc. ("Star") and Defendants and
counterclaim plaintiffs R.J. Reynolds Tobacco Company, a North Carolina corporation, and R.J.
Reynolds Tobacco Company, a New Jersey corporation (collectively "RJR") have reached a
settlement of this case (including all claims and counterclaims). The parties have agreed to the
entry of this Stipulated Dismissal with Prejudice including the terms and conditions set forth
below.
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto,
through their respective counsel of record, as follows:
1. The claims and counterclaims between Star and RJR in the above captioned matter
are hereby dismissed with prejudice.
2. This stipulation is not an acknowledgement of liability of any party for any claim or
allegation asserted in this litigation.
3. RJR reserves the right to rely on the final judgment of non-infringement entered in
this action in any future action for any purpose including but not limited to its res judicata,
collateral estoppel, and/or preclusive impact on any such future action.
Case 8:01-cv-01504-MJG Document 1188 Filed 09/24/12 Page 1 of 4
4. Each party shall bear its own costs and attorneys' fees
He is lying from what I can find they put all transaction on the patent website:
Transaction History
Date
Transaction Description
09-07-2011
Change in Power of Attorney (May Include Associate POA)
09-07-2011
Change in Power of Attorney (May Include Associate POA)
09-04-2011
Correspondence Address Change
01-02-2008
Correspondence Address Change
06-08-2001
Workflow - File Sent to Contractor
11-06-2001
Recordation of Patent Grant Mailed
10-18-2001
Issue Notification Mailed
11-06-2001
Patent Issue Date Used in PTA Calculation
10-02-2001
Application Is Considered Ready for Issue
08-20-2001
Issue Fee Payment Verified
09-27-2001
Workflow - Complete WF Records for Drawings
08-20-2001
Workflow - Drawings Finished
08-20-2001
Workflow - Drawings Matched with File at Contractor
12-03-1998
Workflow - Drawings Received at Contractor
08-20-2001
Workflow - Drawings Received at Contractor
08-20-2001
Workflow - Drawings Sent to Contractor
05-21-2001
Mail Notice of Allowance
05-21-2001
Notice of Allowance Data Verification Completed
05-17-2001
Terminal Disclaimer Approved in TC
05-07-2001
Terminal Disclaimer Filed
05-16-2001
Date Forwarded to Examiner
05-07-2001
Response after Non-Final Action
05-07-2001
Information Disclosure Statement (IDS) Filed
05-07-2001
Information Disclosure Statement (IDS) Filed
05-07-2001
Request for Extension of Time - Granted
12-06-2000
Mail Non-Final Rejection
12-04-2000
Non-Final Rejection
11-29-2000
Case Docketed to Examiner in GAU
06-02-1999
Power to Make Copies and/or Inspect
05-10-1999
Communication - Re: Power of Attorney (PTOL-308)
05-03-1999
Change in Power of Attorney (May Include Associate POA)
12-03-1998
Preliminary Amendment
12-03-1998
Preliminary Amendment
02-14-1999
Case Docketed to Examiner in GAU
12-30-1998
Application Dispatched from OIPE
12-15-1998
IFW Scan & PACR Auto Security Review
12-08-1998
Initial Exam Team nn
Here is full text of motion that was granted today not sure if it will come out good sent from cell phone
SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS Defendants file this Supplemental Brief to provide the Court with notice of certain factual developments that occurred after briefing was completed on Plaintiff’s Motion for Discovery Sanctions (Dkt. 200). These subsequent developments confirm the lack of prejudice to Plaintiff from Defendants’ July 2 disclosure of the Bowman, Culliss, and Ryan references. On August 14, Plaintiff served document subpoenas on Ruben Ortega (co-inventor of the Bowman reference) and Gary Culliss (inventor of the Culliss reference). (Sohn Decl., ¶ 2). Mssrs. Ortega and Culliss produced documents on August 22 and September 4, respectively. (Id.). On August 31, Plaintiff served deposition subpoenas to Mssrs. Culliss and Ortega for September 4 – the very next business day and the last day of fact discovery under the Court’s Scheduling Order. (Id., ¶ 3). Despite this late service, Defendants did not oppose Plaintiff taking these depositions after the fact discovery cutoff, as memorialized in the parties’ Joint Case 2:11-cv-00512-RAJ-FBS Document 247-1 Filed 09/14/12 Page 1 of 5 PageID# 5377 01980.51928/4961816.1 Motion to Amend the Scheduling Order (Dkt. 243). Starting on September 3, Mr. Ortega’s counsel offered several dates for Mr. Ortega’s deposition, and on September 6, counsel suggested a preferred date of September 25. (Sohn Decl., ¶ 4). Meanwhile, Defendants offered to make Mr. Culliss available for deposition on September 27. (Id.). Plaintiff has not yet accepted the September 25 date for Mr. Ortega’s deposition or the September 27 date for Mr. Culliss’ deposition. (Id.)1 Further, on August 29, Plaintiff’s expert (Dr. Jaime Carbonell) submitted his Rebuttal Expert Report Regarding Validity in this case. (Id., ¶ 5). Dr. Carbonell’s report addressed Bowman, Culliss, and Ryan at length, contending that none of these references invalidate the Asserted Patents. (Id.) At no point did Dr. Carbonell state that he was hindered or prejudiced in his ability to analyze these references for purposes of forming his validity opinions. (Id.) Dr. Carbonell is scheduled to be deposed on September 21. Likewise, Dr. Lyle Ungar (Defendants’ invalidity and non-infringement expert) is scheduled to be deposed on September 22 and 23 for twelve total hours. (Id., ¶ 6).2 Accordingly, Plaintiff has now taken (or is scheduled to take) all discovery into the Bowman, Culliss, and Ryan references it has requested. 1 Plaintiff has not sought to take any fact discovery relating to the Ryan reference. 2 Notably, Plaintiff submitted a supplemental expert infringement report one week after Defendants’ rebuttal non-infringement report and just 36 hours before the deposition of Plaintiff’s infringement expert, Dr. Ophir Frieder. (Sohn Decl., ¶ 7). This report disclosed new theories and purported to address depositions occurring as early as 5 weeks earlier. (Id.) At Dr. Frieder’s deposition, however, Plaintiff argued that Defendants suffered no prejudice from the late-disclosed supplemental report because “we gave you the report in time for you to present questions to Dr. Frieder. And, in fact, you did that, so I think the record will reflect that.” (Id.).
DECLARATION OF JOSHUA L. SOHN IN SUPPORT OF DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS I, Joshua L. Sohn, declare as follows: 1. I am an attorney in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP and am counsel for Defendant Google Inc. (“Google”) in the above-captioned case. I provide this declaration upon personal knowledge and, if called upon as a witness, would testify competently as to the matters recited herein. 2. On August 14, Plaintiff in this case served document subpoenas on Ruben Ortega (coinventor of the Bowman reference) and Gary Culliss (inventor of the Culliss reference). Mssrs. Case 2:11-cv-00512-RAJ-FBS Document 247-2 Filed 09/14/12 Page 1 of 6 PageID# 5382 01980.51928/4962070.1 Ortega and Culliss produced documents responsive to these subpoenas on August 22 and September 4, respectively. 3. On August 31, Plaintiff served deposition subpoenas to Mssrs. Culliss and Ortega for September 4 – the very next business day and the last day of fact discovery under the Court’s Scheduling Order. 4. Starting on September 3, Mr. Ortega’s counsel offered several dates for Mr. Ortega’s deposition, and on September 6, counsel suggested a preferred date of September 25. Meanwhile, Defendants offered to make Mr. Culliss available for deposition on September 27. Plaintiff has not yet accepted the September 25 date for Mr. Ortega’s deposition or the September 27 date for Mr. Culliss’ deposition. 5. On August 29, Plaintiff’s expert (Dr. Jaime Carbonell) submitted his Rebuttal Expert Report Regarding Validity in this case. Dr. Carbonell’s report addressed Bowman, Culliss, and Ryan at length, contending that none of these references invalidate the Asserted Patents. At no point did Dr. Carbonell state that he was hindered or prejudiced in his ability to analyze these references for purposes of forming his validity opinions. 6. Dr. Carbonell is scheduled to be deposed on September 21. Likewise, Dr. Lyle Ungar (Defendants’ invalidity and non-infringement expert) is scheduled to be deposed on September 22 and 23 for twelve total hours. 7. Plaintiff submitted a supplemental expert infringement report on September 4 – one week after Defendants’ rebuttal non-infringement report and just 36 hours before the deposition of Plaintiff’s infringement expert, Dr. Ophir Frieder. This report disclosed new theories and purported to address depositions occurring as early as 5 weeks earlier. At Dr. Frieder’s deposition, Plaintiff argued that Defendants suffered no prejudice from the supplemental report Case 2:11-cv-00512-RAJ-FBS Document 247-2 Filed 09/14/12 Page 2 of 6 PageID# 5383 01980.51928/4962070.1 because “we gave you the report in time for you to present questions to Dr. Frieder. And, in fact, you did that, so I think the record will reflect that.” I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.
Yeah i'm leaning more towards a settlement before October well see how things go next week when they meet in court on the 18th. If more things go against google settlement should be pretty soon
Yeah he is pretty impressive, I was the one that asked Altucher that question on twitter earlier was a little confused at first it has a list of depos and schedule but doesnt say who's on who's side. But looks like he's buddies with Carbonelle from Carnegie Mellon. One other question on the depo list Gary Culliss is not scheduled yet is it mandatory that he does this? or can he decline the depo? Time is running out as it says this will not delay so needs to be done in a timely manner.
Rainmaker- I see this list of depos and schedule on Pacer, where does it say who is being questioned by who? I see Culliss isnt even scheduled yet so they better hurry if they want to get him. So Carbonelle is on our side?