On Friday, Judge Lucy Koh, the federal judge who will preside over the Apple v. Samsung trial that begins in about a week, entered a minute order as a follow-up to a case management conference held on the previous day. The fact that she excluded any evidence related to Walter Isaacson's Steve Jobs biography (quotes on "thermonuclear war" against Android) was already reported by journalists who attended the hearing. The minute order summarizes, among other things, all of Judge Koh's decisions on the parties' motions in limine (motions to exclude arguments/testimony). I previously mentioned the motions in limine and said I was going to talk about them more specifically following the full briefing process and the related decisions.
While Apple scored clear wins in some other pretrial contexts (claim construction, summary judgment, expert reports), both parties scored a similar number of wins, losses and "granted in part, denied in part" results. It's possible that the exclusion of Steve Jobs's vow to destroy Android was not only the issue of most media appeal but also the single most important issue to be resolved through a motion in limine (because of its potential impact on the jury's perspective), but I don't know for sure.
Decisions on Apple's motions in limine
Samsung will be allowed to present and discuss an iPad prototype known as "Model 035" in connection with Apple's D'889 design patent underlying the preliminary ban of the Galaxy Tab 10.1. Apple will certainly downplay the relevance of that design model to the scope of the D'889 patent. The jury should decide on whether the Galaxy Tab 10.1 the D'889 patent as granted, not whether it's similar to a ten-year-old design model. But if the jury is unsure of an infringement of the D'889 patent as granted, Model 035 might tilt the scales in Samsung's favor.
Samsung wanted to show some Apple and Samsung design patents that don't constitute prior art to any of the asserted design patents. Samsung's objective was to narrow the scope of the actually-asserted rights. Judge Koh agrees with Apple and doesn't allow this.
Apple largely prevailed on the exclusion of alleged prior art: Samsung may not introduce devices called the KR30-0452985, Sharp Softbank, KU990Viewty, LG KS20, LG Chocolate, and F300, nor certain internal documents. But it will be allowed to show the LG KE 750 Prada, an older phone that bears quite some resemblance with the iPhone. It's possible that the LG Prada is far more useful to Samsung (in its defense against Apple's iPhone-related design patents) than those other devices.
Samsung will be allowed, against Apple's objection, to show partial views such as a single two-dimensional view of designs (as well as testimony that involves the use of such views).
In connection with willfulness, defendants frequently argue that they relied on legal advice that their products were above board and, therefore, didn't just go ahead and recklessly infringe. So does Samsung, but it didn't allow any related discovery. Judge Koh agrees with Apple and excluded this evidence.
Apple prevailed on a motion to exclude evidence regarding decisions by other courts or the ITC on any Apple or Samsung patents. Samsung prevailed on a similar motion of complementary scope.
Apple's motion in limine no. 7 related to Steve Jobs's biography. I addressed this one further above. At the hearing, Judge Koh made clear that this trial isn't really about Steve Jobs. This is typical of her very facts-focused approach to these issues.
Apple's motion in limine regarding the parties' corporate behavior or financial circumstances has been denied, and Samsung is allowed to "reference the number of hours worked by individuals who manufactured Apple products, as this evidence is relevant to Apple’s capability to meet demand", but what's very good for Apple, "Samsung may not make reference to alleged working condition abuses" (Foxconn).
Apple doesn't get to bar Samsung from "offering profits calculations based on a tax agreement with the IRS". This may help Samsung to understate its profits for the purpose of a disgorgement or in connection with other damages theories.
In my previous post on the motions in limine, I discussed the story of the Fingerworks acquisition. I thought Apple was right that a deal involving different patents (even a different type of patent: touchscreen hardware patents, unlike the software patents at issue in this case) doesn't provide any remotely reliable indication as to the value of Apple's patents-in-suit. Judge Koh granted Apple's related motion.
Decisions on Samsung's motions in limine
Samsung's first motion in limine (a motion to exclude evidence that is not specific to the intellectual property rights-in-suit) has been granted in part and denied in part. Judge Koh granted it "with respect to evidence related to Apple Brand, and evidence that Samsung shared confidential business information", and "[e]vidence related to Steve Jobs will generally be excluded unless it is specifically relevant to the IP rights at issue in the case, although the Court will make that determination on a case-by-case basis". While Apple won't be able to turn this trial into a popularity contest, it still gets to refer to "evidence of media coverage of Apple products and evidence of copying of Apple’s designs".
Samsung attacked some "consumer confusion surveys". Apple will be allowed to use such evidence because it "show[s] that Samsung was on notice of potential consumer confusion, which is relevant to knowledge, intent, and willfulness for Apple's trade dress and design infringement claims", and because consumer confusion is relevant to Apple's trade dress claims (infringement and dilution). But Apple's use of a study related to the Galaxy Tab 7.0, which is no longer at issue in this case, is restricted in part.
Samsung wanted to exclude references to some of its products with respect to Apple's claims that they infringe certain intellectual property rights-in-suit. Judge Koh granted this motion in part, barring Apple from asserting its software patents against the Epic 4G Touch, Skyrocket, Gravity Smart, and Galaxy S Showcase i500 devices, but some Galaxy S2 devices will still be targeted with certain intellectual property rights. On Monday, the parties will have to update their proposed jury verdict forms accordingly, and the new versions will be reflective of this decision.
Samsung has won a decision to "exclude reference to findings or rulings in other proceedings not involving the patents at issue in this case". This one complements the court's ruling in favor of Apple's motion to exclude decisions relating to any Apple or Samsung patent.
Samsung was quite concerned about prejudice that might have resulted from Apple making reference to its preliminary injunction wins. Judge Koh agrees with Samsung that the jury should not be confused since it will be "the final arbiter of the factual questions in this case". Also, Apple won't be allowed to make reference to most of the decisions on evidentiary issues, including certain sanctions that were ordered against Samsung, with the sole exception that "evidence of Samsung's failures to disclose accurate financial data in discovery is admissible".
Judge Koh denied a Samsung motion to "exclude generalizations" regarding how the accused Samsung products operate. Due to a heavily-redacted original motion, it's not clear to me what was meant.
Against Samsung's objection, Apple will be allowed to show "resized or altered photos of [S]amsung products in side-by-side product comparisons". This issue got quite some media attention last year. While I didn't think that Apple really wanted to manipulate the evidence, I think it was reasonable to ask that such side-by-side product comparisons not be allowed at this trial. If Samsung loses on any of the design patent claims, I'm sure it will tell the appeals court that it was prejudiced by such evidence.
Judge Koh denied a Samsung motion to "exclude any evidence of pre-filing notice other than identified in Apple's interrogatory response and provisionally exclude Mr. Musika's opinions on pre-filing damages unless and until Apple makes a prima facie showing of entitlement to such damages". Mr. Musika is an Apple damages expert, and the issue here is that Samsung doesn't want to be liable for damages before Apple put it on notice of any alleged infringement.
Apple will be free to present "evidence of Samsung's overall revenues, profits, wealth and value and evidence or argument that Samsung has paid lower taxes than it should have", but it won't be allowed to argue that an agreement with the government amounts to tax evasion.
Apple won't be allowed to claim that it's presently licensed to the allegedly standard-essential patents-in-suit, but Apple had already clarified prior to this decision that it wasn't going to make this claim anymore. I also addressed this in my previous post on the motions in limine (final paragraph).
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