In anticipation for the trial in this case that is set to begin this week in Personalized User Model, L.L.P. v. Google, Inc., C.A. No. 09-525-LPS, on March 6 Judge Leonard P. Stark ruled on various pre-trial issues.
First, the Court adopted defendant’s proposed order of proof, which permitted “each party to reply to the other side’s rebuttal on any issue for which a party bears the burden of proof.” Id. at 1. The trial will proceed in four phases. See id. at 1-2. As a result, the Court also denied plaintiff’s request for one of its witnesses to provide the full scope of his testimony in a single phase. Id. at 2.
Second, the Court granted plaintiff’s motion to preclude defendant from referring to recent changes in the accused technology. Defendant intended to use this information as evidence that the patents-in-suit lacked commercial success, but it appeared to the Court that plaintiff had not had the opportunity to determine whether these changes impacted infringement in discovery, plus plaintiff “could have reasonably believed that evidence of such changes [that occurred after the close of fact discovery] would not be admissible.” Id. at 2-3. Because this ruling “may put certain witnesses in an awkward position, in which potentially they may have to testify in a manner that is not fully truthful in order not to reveal to the jury recent changes in the Accused Technologies,” the Court also required counsel to ask precise questions and it would also provide a specific jury instruction about this issue. Id. at 3.
Finally, the Court denied plaintiff’s motion regarding the statute of limitations applicable to defendant’s breach of contract defense and counterclaim. The Court found that the motion was “in essence, an untimely motion for summary judgment, and not merely a motion seeking clarification of the governing law.” Id. at 4.