Customer Comments Admissible Over a Hearsay Objection Where Comments Could Be Used to Establish Use of an Infringing Feature

ABT Systems, LLC (“ABT”) filed an action against Emerson Electric Co. (“Emerson”). As the case proceeded to trial, the district court made some key rulings on motions in limine. In particular, the district court addressed whether customer product reviews on the Internet were admissible over a hearsay objection.

As the district court explained,”Motion to exclude customer product reviews appearing on the internet to establish actual use of the infringing feature of Emerson’s accused products, on hearsay grounds, is DENIED with respect to customer comments, provided that Plaintiffs lay a proper foundation and the comments are not offered for their truth of the matters asserted. Emerson may request a limiting instruction as to the use of these comments only to show customer use. Plaintiffs may seek permission at trial to use the comments for impeachment purposes, depending upon the evidence presented by Emerson. The motion is GRANTED with respect to introduction of “sorting” information to show popularity of the infringing feature.”

The district court also addressed whether journal entries about what was said or not said by Honeywell representatives. The district court concluded that these statements were inadmissible hearsay. “Motion to preclude Mr. Rudd’s testimony and journal entries about what was said or not said by Honeywell representatives regarding the Honeywell PC8900 in conversations with Mr. Rudd in 1995 and 1997 is GRANTED, as this evidence would be inadmissable hearsay. Based on the evidence presented, the Court finds that Mr. Rudd’s notes of his conversations does not qualify as a business records. The failure of the Honeywell representatives to mention the Honeywell PC8900 to Mr. Rudd cannot be offered to prove that it was not on the market at the time. As offered by Plaintiffs, this is assertive conduct, offered for the truth, and is thus also inadmissible hearsay. The cases cited by Plaintiffs are inapposite.”

ABT Systems, LLC v. Emerson Electric Co., Case No. 4:11-CV-00374 AGF (E.D. Mo. Feb. 7, 2013)

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