With no settlement at hand, things are heating up ahead of Vringo's (NYSE: VRNG) jury trial with Google (NASDAQ: GOOG) which is scheduled to start tomorrow 10/16 at 10AM ET. Below is a rundown of the latest in the case (Since 10/12):
Oct. 12, 2012 MOTIONS REFERRED to Magistrate Judge: Magistrate Judge Tommy E. Miller. 425 MOTION to Seal its Opposition to Defendants Motion for Summary Judgment along with Exhibits 8, 11-19, 22-24, 27-32, 34-39, 45, 53-54, 56. (ecav, ) (Entered: 10/12/2012)
Oct. 12, 2012 MOTIONS REFERRED to Magistrate Judge: Magistrate Judge Tommy E. Miller. 296 MOTION to Seal Portions of Defendants' Memorandum in Support of Motion in Limine No. 3 to Exclude Marketing and High-Level Non-Technical Matters Related to Historical Click-Through Rate, and Exhibits F, H, I and J to the Declaration of Joshua, 316 MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Exclude Testimony from Stephen L. Becker and Certain Materials Filed in Support Thereof, 331 MOTION to Seal the Memorandum in Support of Plaintiff I/P Engine, Inc.'s Second Motion in Limine to Preclude Non-Comparable License Agreements along with Exhibits 1 and 2, 312 MOTION to Seal Exhibit 3 to the Memorandum in Support of Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence, 338 MOTION to Seal the Memorandum in Support of Plaintiff I/P Engine, Inc.'s Motion to Exclude Opinions and Testimony of Keith R. Ugone along with Exhibits 1 and 2 (ecav, ) (Entered: 10/12/2012)
Oct. 12, 2012 704 Defendants' Proposed Pre-Trial Jury Instructions Proposed Jury Instructions by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Noona, Stephen) (Entered: 10/12/2012)
Oct. 12, 2012 705 ORDER NUMBER 2 - PRE-TRIAL MOTIONS: Before the Court are remaining motions to exclude evidence and witnesses from trial in the above-styled matter filed by both Plaintiff and Defendants. These matters have been fully briefed by the Parties. The Court finds that oral arguments of these motions will not aid itsdecisional 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 as outlined: Plaintiffs First Motion in Limine as to Items 2 and 6 is DEFERRED. The Court's reasoning with respect to the Lycos agreements is equally applicable to the seven agreements Defendants wish to offer, which by their own admission are non-comparable, and are again solely offered for the purpose of showing a preference by Google for lump sum royalty payments. Non-comparable licenses cannot be used to determine either the form or amount of a reasonable royalty. Accordingly, for the reasons outlined above and under the Court's discretion under Fed. R. Evid. 403, Plaintiffs Second Motion in Limine to Preclude Non-Comparable License Agreements between Google and other third parties, as outlined in Plaintiffs memorandum in support of this motion, is GRANTED. Plaintiffs Second Motion in Limine to exclude the Google-Meyer Agreement is DENIED. Additionally, the Court's reasoning with respect to the Google-Meyer Agreement is equally applicable to the Google-Disney Agreement. As there is a dispute to whether the technology underlying the Google-Disney Agreements is comparable, the jury must resolve the dispute in the context of determining a reasonable royalty for damages. Consequently, Plaintiffs Second Motion in Limine to exclude the Google-Disney Agreement is DENIED. Court GRANTS Plaintiffs Motion Exclude Opinions and Testimony of Keith R. Ugone as t o any testimony using a "yardstick" or "proxy" methodology or the use of the real estate valuations analogies in this context. Dr. Ugone is free to present expert opinion using established methods of calculating damages, including the hypothetical negotiation approach guided by the Georgia-Pacific Factors, which he purports to use. Having reviewed the motions and related pleadings, the Court finds that Dr. Ungars new theory of invalidity is not violative of Rule 26 procedures. Furthermore, the Court finds that Plaintiff has neither been surprised nor prejudiced by this new theory under Fourth Circuit precedent on this issue. See Southern States Rack & Fixture, Inc. v. Sherwm-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). Accordingly, Plaintiffs motion as to Dr. Ungars' new theory of invalidity is DENIED. At Final-Pre Trial Conference, Defendants essentially asked for reconsideration of the Court's previous denial of their Motion in Limine No. 2. Having again reviewed the relevant case law, the Court declines to reconsider its decision. I/P Engine, through its damages expert, is prepared to offer evidence at trial that "patented technology forms a substantial basis of the consumer demand of the accused products" through discovered documents showing increased revenue specifically attributed to patented technologies, presumably reflecting increased consumer demand. The sufficiency of this evidence in determining a reasonable royalty is a question for the jury. If questions arise as to whether Dr. Becker's trial testimony adequately supports application of the Entire Market Value Rule, they can be addressed through cross examination or through relevant trial motions. Accordingly, motion for reconsideration of the Court's previous denial of their Motion in Limine No. 2 is DENIED. Having reviewed the motion and related pleadings, the Court finds that objections to Dr. Becker's testimony are best resolved at trial during the course of examination as they generally go to the weight of the evidence and should be resolve d by the jury. In summary: Defendants' Motion to Exclude the Testimony of Dr. Stephen L. Becker (ECF No. 319) is DENIED. DENYING 293 Motion to Dismiss; GRANTING 299 Motion in Limine; DENYING 319 Motion to Exclude; DENYING 327 Motion to Exclude; GRANTING IN PART AND DENYING IN PART 333 Motion in Limine; GRANTING IN PART AND DENYING IN PART 340 Motion to Exclude; GRANTING IN PART AND DENYING IN PART 357 Motion in Limine, as outlined in this Order. (See Order for entire Specifics) Entered and filed 10/12/12. (Signed by District Judge Raymond A. Jackson on 10/12/12). (ecav, ) (Entered: 10/12/2012)
Oct. 14, 2012 706 MOTION to Seal Portions Of Exhibit 1 To The OBrien Declaration In Support Of Defendants Motion For Sanctions And To Strike Portions Of Dr. Frieders Second Updated Expert Report by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 707 Memorandum in Support re 706 MOTION to Seal Portions Of Exhibit 1 To The OBrien Declaration In Support Of Defendants Motion For Sanctions And To Strike Portions Of Dr. Frieders Second Updated Expert Report filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 708 NOTICE by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation re 706 MOTION to Seal Portions Of Exhibit 1 To The OBrien Declaration In Support Of Defendants Motion For Sanctions And To Strike Portions Of Dr. Frieders Second Updated Expert Report (Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 709 Emergency MOTION to Strike and For Sanctions and To Strike Plaintiffs Supplemental Expert Report In Violation Of the Courts October 9 Order by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 710 Memorandum in Support re 709 Emergency MOTION to Strike and For Sanctions and To Strike Plaintiffs Supplemental Expert Report In Violation Of the Courts October 9 Order filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 711 Declaration re 710 Memorandum in Support, of Emily O'Brien in Support of Defendants Emergency Motion For Sanctions and To Strike Plaintiffs Supplemental Expert Report In Violation Of the Courts October 9 Order by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 712 Consent MOTION to Expedite and Memorandum in Support of Consent Motion to Expedite Briefing on Defendants Emergency Motion For Sanctions And To Strike Plaintiffs Supplemental Expert Report In Violation Of The Courts October 9 Order by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen) (Entered: 10/14/2012)
Oct. 14, 2012 713 Reply to Motion re 701 MOTION to Expedite Briefing on Plaintiffs Motion for Review of Judge Leonards Ruling on I/P Engines Third Motion for Discovery Sanctions filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/14/2012)
Oct. 15, 2012 Notice of Correction re 710 Memorandum in Support - The filing user has been notified to file a separate Certificate of Service. The certificate of service filed is not signed. (rsim, ) (Entered: 10/15/2012)
Oct. 15, 2012 Notice of Correction re 713 Reply to Motion - The filing user has been notified to file a separate Certificate of Service. The certificate of service filed is not signed. (rsim, ) (Entered: 10/15/2012)
Oct. 15, 2012 714 CERTIFICATE of Service (Amended) re 710 Memorandum in Support, by Stephen Edward Noona on behalf of AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation (Noona, Stephen) (Entered: 10/15/2012)
Oct. 15, 2012 715 CERTIFICATE of Service (Amended) re 713 Reply to Motion, by Stephen Edward Noona on behalf of AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation (Noona, Stephen) (Entered: 10/15/2012)
Oct. 15, 2012 716 Opposition to 700 MOTION for Reconsideration re 697 Order on Motion for Sanctions,,,,,,,,,,,,, denial of I/P Engines Third Motion for Discovery Sanctions Defendants' Opposition to Plaintiff's Motion for Review of Judge Leonard's Ruling on Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) (Entered: 10/15/2012)
Oct. 15, 2012 MOTIONS REFERRED to Magistrate Judge Tommy E. Miller. 453 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #5 along with Exhibits 1 and 2, 436 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #1 along with Exhibits 5-6 and 11-12, 465 MOTION to Seal Defendants' Memorandum in Support of Their Opposition to Plaintiff I/P Engine, Inc.'s Motion to Exclude Opinions and Testimony of Keith R. Ugone, 449 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #4 along with Exhibits 1 and 2, 457 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion to Exclude the Testimony of Stephen L. Becker along with Exhibits 1-5, 7-8, and 10-11, 462 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants Motion to Preclude Dr. Frieder from Testifying Regarding Untimely Opinions along with Exhibits 1-3 and 5, 441 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #2 along with Exhibits 1 and 2, 445 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #3 along with Exhibits 3-11 (rsim, ) (Entered: 10/15/2012)
Oct. 15, 2012 MOTION REFERRED to Magistrate Judge Tommy E. Miller. 429 MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence; (2) Portions of Defendants' Opposition to Plaintiff I/P Engine's Second Motion in Limine to MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence; (2) Portions of Defendants' Opposition to Plaintiff I/P Engine's Second Motion in Limine to MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence; (2) Portions of Defendants' Opposition to Plaintiff I/P Engine's Second Motion in Limine to (rsim, ) (Entered: 10/15/2012)
