Plaintiff Prohibited from Offering Evidence of Defendants' Overall Economic Status and Profitability During Patent Infringement Trial

April 18, 2012

In this patent infringement action pending in the Eastern District of Texas between SimpleAir and a number of defendants, including Apple, the defendants filed a motion in limine to preclude SimpleAir from referencing the revenue or profits associated with Defendants' products or Defendants' overall economic status, profitability, or relative financial strength. In ruling on the motion in limine, the district court granted the motion in part and denied the motion in part.

The defendants apparently filed the motion in limine to prevent the plaintiff from trying to influence the jury on liability and damages by merely referencing defendants' financial strength and profitability. The district court granted the motion in part, ordering that SimpleAir would be prohibited from discussing the total revenue or profits of defendants' products. The district court did permit, however, SimpleAir to discuss the incremental change in revenue, but only to the limited scope the expert addressed it in his expert report.

The district court also ordered that SimpleAir would not be allowed to address defendants' overall economic status, profitability, or relative financial strength. But the district court did permit SimpleAir to discuss market share, market power, and the size of the defendants relative to SimpleAir.

In an unrelated part of the order, the district court also noted that the parties had not complied with its order regarding exhibits and deposition testimony in good faith. "When the Court instructed the parties on filing their pretrial materials, the Court stated that '[at] list of exhibits (including demonstrative exhibits) and a designation of portions of depositions that a party in good faith intends to offer at trail must be filed by each party' the Court also instructed that '[t]he parties also must adhere to the meet and confer requirement set forth in Local Rule CV-7(h) when filing their objections which will help to narrow issues that are actually in dispute.'

"Defendants' most recently filed exhibits list contains 3235 exhibits encompassing a list 412 pages long (doc. No. 469-10). Plaintiffs' most recently filed list contains 619 exhibits encompassing a list approximately 32 pages long. This results in 3854 exhibits collectively.

"As for deposition designations, Apple's designation list is approximately 68 pages long (Doc No. 469-5). RIM's deposition designation list covers 17 pages (Doc. No. 469-7). Lastly, SimpleAir's deposition designation list spans 33 pages (Doc. No. 469-2).

"It is evident that none of the parties complied with the Court's previous order. None of the parties can reasonably argue in good faith that it intends to offer that many exhibits or that much deposition testimony at trial. Clearly, the parties disregarded the good faith and meet and confer instructions."

As a result, the district court ordered the parties to re-file the exhibit list and deposition designations and limited the exhibit list to no more than 200 exhibits per party and the deposition designations to a total of ten hours per party.


SimpleAir, Inc. v. AWS Convergence Technologies, Inc., et al., Case No. 2:09-cv-289 (E.D. Tex. April 3, 2012)

The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.