By Eric Schweibenz
On June 21, 2010, ALJ E. James Gildea issued the public versions of Order Nos. 25 and 26 (dated June 8, 2010) in Certain Video Displays, Components Thereof, and Products Containing Same (Inv. No. 337-TA-687) denying motions in limine filed by Complainant LG Electronics, Inc. (“LG”) and Respondents Vizio, Inc. (“Vizio”) and AmTran Technology Co., Ltd. and AmTran Logistics, Inc. (“AmTran”) (collectively, “Respondents”).

According to Order No. 25, LG moved on May 19, 2010, to preclude Respondents from offering evidence relating to an RCA Set Top Box Model DTC-100 (the “DTC-100”) on the grounds that the DTC-100 was not prior art to asserted U.S. Patent No. 7,154,564.  LG also moved to preclude Respondents from comparing LG’s infringement contentions regarding asserted U.S. Patent No. 5,790,096 to the Video Electronics Standards Association (“VESA”) “TV Panels Standard” on the grounds that Respondents “failed to adduce sufficient evidence and expert analysis to support a defense of breach of contractual duty of good faith in connection with LG’s membership in VESA.”  Respondents and the Commission Investigative Staff (“OUII”) opposed LG’s motion on May 27, 2010, noting that the issues raised by LG were in dispute and concerned the weight, rather than admissibility of the evidence, and that Dr. Min had extensively opined on the VESA standard and its relation to LG’s infringement contentions.  ALJ Gildea agreed with Respondents, and determined that the “issue of whether the DTC-100 is prior art to the ‘564 patent is not as clear cut as LG argues, and thus all parties should have an opportunity to present evidence on this issue at the hearing.”  ALJ Gildea further determined that LG had not demonstrated that Dr. Min failed to discuss the VESA defense, and for the above reasons denied LG’s in limine motion in full.

According to Order No. 26, Respondents filed a motion in limine on May 19, 2010, to preclude LG from (i) offering expert testimony relating to alleged infringement under the doctrine of equivalents; (ii) offering evidence relating to accused televisions other than the three specific models analyzed by LG and its experts, including any expert testimony that the examined products are representative of any other products; (iii) offering into evidence designated deposition transcript testimony from transcripts that LG had designated in their entirety, from LG-controlled witnesses, or from witnesses that Respondents will be bringing to the hearing to provide live testimony; and (iv) offering into evidence interrogatory responses.

With respect to expert testimony on infringement under the doctrine of equivalents, Respondents argued that LG’s experts “did not provide substantive analysis” to assess equivalence.  LG and OUII argued that the expert reports of LG’s experts disclosed their opinions regarding doctrine of equivalence, and that Respondents had an opportunity to explore their opinions during depositions.  ALJ Gildea agreed with LG and OUII, and denied this portion of Respondents’ motion.

Regarding LG’s use of representative products, Respondents argued that LG’s experts failed to explain to which infringement groups a non-representative product belonged, the basis for categorizing these infringement groups, and how representative products operated similarly to non-representative products.  LG responded that its experts created four groupings of accused products, and that LG’s experts’ analysis of one representative product from each group applied to each and every member of the respective group.  ALJ Gildea determined that Respondents had not demonstrated the LG failed to explain its system of representative products such that all evidence relating to the accused televisions other than the representative products should be precluded, and accordingly denied this portion of Respondents’ motion.

With respect to deposition designations, Respondents argued that LG had "no legitimate reason" to designate entire deposition transcripts, that deposition transcripts of LG-controlled witnesses should not be designated in lieu of live testimony, and that deposition designations for Respondents' witnesses who will be testifying at the hearing would be inappropriate for any purpose other than impeachment.  According to the order, LG responded that Respondents had agreed to admit certain of the deposition transcripts as joint exhibits, and that LG is entitled to make counter-designations in response to Respondents’ deposition designations under Commission Rule 210.28(h)(4), and this rule does not limit the volume of depositions to be designated.  ALJ Gildea determined that based on this rule, LG was within its rights to counter-designate testimony of its own witnesses in response to Respondent’s designations, and therefore denied this portion of Respondent’s motion.  ALJ Gildea also determined that with respect to designations of testimony of witnesses from outside the United States, it was not yet clear which witnesses would be providing live testimony at the hearing, and therefore it would be premature to rule on such designations.   ALJ Gildea further determined that “regardless of the volume of deposition testimony that may ultimately be admitted into evidence, it is the parties' responsibility to specifically cite to those portions that may have significance in their proposed and rebuttal findings of fact and in the post-hearing briefing.”

Finally, regarding the admission of interrogatory responses, Respondents asserted that “there is no place for interrogatory responses in evidence,” to which LG responded that it is ITC practice to admit interrogatory responses into evidence with a sponsoring witness.   ALJ Gildea declined to make a blanket ruling and determined that the admissibility of interrogatory responses would be made on a case-by-case basis, noting that “there may be situations, such as the introduction of a list of products via a sponsoring witness, where admission of all or a portion of a particular interrogatory response would be appropriate.”

For the above reasons, ALJ Gildea denied Respondents’ motion in limine.