Case 1:10-cv-00004-LPS Document 458 Filed 01/31/13 Page 1 of 3 PageID #: 16354

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ENOV A TECHNOLOGY CORPORATION,

Plaintiff,
V.

C.A. No. 10-04-LPS

INITIO CORPORATION, ET AL.,

Defendants.

ORDER At Wilmington this 31st day of January, 2013, IT IS HEREBY ORDERED that:
1.

Plaintiffs motion in limine 1, seeking to preclude Defendants from introducing at

trial or relying upon evidence or argument regarding foreign patent proceedings, disputes, prosecution, or enforcement involving Enova's foreign patent rights, is GRANTED with respect to the forthcoming jury trial and DENIED with respect to the bench trial on inequitable conduct. As concerns the jury trial, admission of such evidence is not relevant and, even if it were, its probative value would be substantially outweighed by the danger of unfair prejudice and confusion, making exclusion proper under Federal Rule of Evidence ("Rule") 403. 2. Plaintiffs motion in limine 2, seeking, to preclude Defendants' testimony or

opinions of their expert, Dr. Andrew Wolfe, regarding the value ofEnova's patented technology

and the value and availability of non-infringing alternatives, is DENIED. This is an untimely

Daubert motion. Additionally, the evidence Plaintiff seeks to exclude is relevant and its
probative value is not substantially outweighed by th danger of unfair prejudice, confusion, or
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Case 1:10-cv-00004-LPS Document 458 Filed 01/31/13 Page 2 of 3 PageID #: 16355

any of the other considerations of Rule 403. 3. Plaintiffs motion in limine 3, seeking to exclude testimony and argument

inconsistent with the Court's claim construction, is GRANTED. All parties agree that such evidence and argument will not be permitted. 4. Plaintiffs motion in limine 4, seeking to exclude evidence regarding "unrelated"

licenses not comparable to the hypothetical licenses at issue in this case, is DENIED. The Court is not persuaded that the licenses at issue are so non-comparable as to be irrelevant or to render their probative value so minimal as to be substantially outweighed by the concerns embodied in Rule 403. Plaintiffs concerns are best be addressed through cross-examination of Defendants' witnesses as well as presentation of competing evidence. 5. Defendants' motion in limine 1, seeking to preclude any mention or use of

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Buffalo's settlement with Enova, is DENIED. The parties' experts may offer their competing analyses as to the weight, if any, to be given to this settlement. The Court is not persuaded that use of the settlement agreement is barred by Rule 408 or that its admission is improper under the

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weighing required by Rule 403. 6. Defendants' motion in limine 2, seeking to preclude improper or insufficient pre-

suit knowledge of the patents-in-suit, is GRANTED. Plaintiff fails to address Defendants' arguments. Additionally, the Court is persuaded that the evidence at issue is inadmissible hearsay (see Rule 802) and that any probative value of such evidence is substantially outweighed by the risk of undue prejudice and confusion, making exclusion proper under Rule 403. 7. Defendants' motion in limine 3, seeking to preclude evidence of lost sales or

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price erosion, is GRANTED. Plaintiff is not seeking, and cannot demonstrate, lost sales or price 2

Case 1:10-cv-00004-LPS Document 458 Filed 01/31/13 Page 3 of 3 PageID #: 16356

erosion as part of its theory of damages. Allowing such evidence to be admitted would run afoul of Rules 402 and 403. However, should Defendants open the door to such evidence- for, by example, faulting Plaintiff for not reducing its prices - the Court will permit Plaintiff to rebut such a charge, including, if necessary, by admission of the evidence now excluded by this Order. 8. The Court will hear argument at the pretrial conference on Defendants' motion in

limine 4 to the extent it concerns Enova's list of allegedly infringing products. With respect to the priority date of the patents-in-suit, the motion is unopposed and GRANTED. 9. limine 5. The Court will hear argument at the pretrial conference on Defendants' motion in

UNITED STATES DIST

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