IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:19-CV-00395-JRG
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`§§
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`BRIGHT DATA LTD.,
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`Plaintiff,
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`v.
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`TESO LT, UAB, METACLUSTER LT,
`UAB, OXYSALES, UAB,
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`
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`Defendants.
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`
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`ORDER ON PRETRIAL MOTIONS AND MOTIONS IN LIMINE
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`The Court held a Pretrial Conference in the above-captioned matter on Tuesday, August
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`31, 2021 regarding pending pretrial motions and motions in limine (“MILs”) filed by Plaintiff
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`Bright Data Ltd. (“Plaintiff” or “Bright Data”) and Defendants Teso LT, UAB, Metacluster LT,
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`UAB, and Oxysales, UAB (collectively, “Defendants” or “Oxylabs”) (together with Bright Data,
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`the “Parties”). (Dkt. Nos. 244, 242, 277, 237, 276, 241, 269, 240, 236, 239, 425, 371, 364, 362,
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`363, 464, 467). This Order memorializes the Court’s rulings on the aforementioned pretrial
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`motions and MILs as announced from the bench into the record, including additional instructions
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`that were given to the Parties. While this Order summarizes the Court’s rulings as announced into
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`the record during the pretrial hearing, this Order in no way limits or constrains such rulings from
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`the bench. Accordingly, it is hereby ORDERED as follows:
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`Code200, UAB, et al. v. Bright Data Ltd.
`IPR2022-00861, EX. 2043
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`PRETRIAL MOTIONS
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`1.
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`Bright Data’s Motion to Strike Invalidity Opinions of Expert Michael Freedman
`(Dkt. No. 244)
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`The motion was DENIED. (Dkt. No. 469 at 63:11–13).
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`The Court was persuaded that Dr. Freedman did not disregard the Court’s claim
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`construction and noted that the other matters raised in Bright Data’s motion are adequately
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`addressed through cross examination. (Id. at 63:8–11).
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`2.
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`Bright Data’s Motion for Partial Summary Judgment of No Invalidity of ’319 and
`’510 Patent Claims (Dkt. No. 242)
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`The Motion was DENIED. (Id. at 63:14–17).
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`The Court noted that this motion was effectively controlled by the ruling on Bright Data’s
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`Motion to Strike Invalidity Opinions of Expert Michael Freedman (Dkt. No. 244). Given that the
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`Court declined to strike Dr. Freedman’s invalidity opinions, a fact issue remained regarding the
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`validity of the ’319 and ’510 Patent claims. (See id. at 63:8–14).
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`3.
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`Oxylabs’ Motion for Summary Judgment of Invalidity (Dkt. No. 277)
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`The Motion was DENIED. (Id. at 63:18–64:2).
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`The Court was persuaded that Dr. Rhyne put forth sufficient opinions to create a genuine
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`issue of material fact regarding the issue of validity. To the extent that Defendants’ Motion for
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`Summary Judgment of invalidity was in essence a motion to reconsider the Court’s Section 101
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`ruling, the Court reaffirmed its prior denial of Defendants’ Motion for Judgment on the Pleadings
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`Under Fed. R. Civ. P. 12(c) and 35 U.S.C. § 101 (Dkt. No. 210). (Id.; see also Dkt. No. 303).
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`4.
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`Oxylabs’ Motion to Strike Expert Opinions of Dr. V. Thomas Rhyne (Dkt. No. 237)
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`The motion was GRANTED-IN-PART and DENIED-IN-PART.
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`For part (A) of the motion requesting the Court to preclude Dr. Rhyne from offering a
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`conclusion on contributory infringement, the motion was GRANTED. (Dkt. No. 469 at 82:21–22).
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`Code200, UAB, et al. v. Bright Data Ltd.
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`The Court found that Dr. Rhyne’s report merely puts forward boilerplate language from Bright
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`Data’s infringement contentions and failed to sufficiently opine in a reliable and specific manner
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`to support a conclusion of contributory infringement. (Id. at 82:23–83:1). However, the Court
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`noted that Dr. Rhyne may testify regarding whether an allegedly infringing component constitutes
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`a material part of the invention but may not go beyond that limited discussion in his report. (Id. at
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`83:1–4).
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`For part (B) of the motion requesting the Court to preclude Dr. Rhyne from opining on
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`induced infringement, the Motion was DENIED. (Id. at 83:9–10). The Court found that Dr.
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`Rhyne’s conclusion of induced infringement and his discussion of third parties utilizing
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`Defendants’ software was reliably sufficient to support testimony on induced infringement. (Id. at
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`83:8–15; Dkt. No. 237-2 at ¶¶ 3, 111–14, 163).
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`For part (C) of the motion requesting the Court to strike Dr. Rhyne’s opinions based on
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`Oxylabs’ copying, the motion was DENIED. (Dkt No. 469 at 84:12–13). However, the Court
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`noted that testimony regarding copying shall be limited to secondary considerations of
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`non-obviousness and may not be used to support infringement theories. (Id. at 83:14–21); Allen
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`Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1351 (Fed. Cir. 2002) (noting that “[w]hile
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`copying may be relevant to obviousness, it is of no import on the question of whether the claims
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`of an issued patent are infringed”).
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`For part (D) of the motion requesting the Court to preclude Dr. Rhyne from testifying that
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`the patents-in-suit cover residential proxies, the motion was DENIED. (Dkt. No. 469 at 83:16–17).
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`However, the Court instructed that Dr. Rhyne is not to opine that the claims of the patents-in-suit
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`are limited to residential proxies. The Court further rejected and precluded any testimony as to
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`“client device” and “server” being limited to only “residential devices.” (Id. at 83:18–84:3).
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`For part (E) of the motion requesting the Court to preclude Dr. Rhyne from testifying
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`regarding secondary considerations of non-obviousness, the motion was DENIED. (Id. at
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`84:4–11). The Court found that Dr. Rhyne established a sufficient nexus between the secondary
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`considerations and the claimed invention. (Id. at 84:7–11).
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`For part (F) of the motion requesting the Court to strike Dr. Rhyne’s opinion that “a client
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`device is specifically not a server,” the motion was DENIED. (Id. at 64:3–12). The Court found
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`that Dr. Rhyne does not specifically argue that a “client device is specifically not a server” in his
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`report, but rather offered the opinion in his deposition. (Id. at 64:5–8; Dkt. No. 281-2 at 69:8–12).
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`Consistent with his report, the Court instructed that Dr. Rhyne was not to testify before the jury
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`that a client device cannot be a server. (Dkt. No. 469 at 64:10–13).
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`For part (G) of the motion requesting the Court to preclude Dr. Rhyne’s opinions based on
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`Bright Data’s infringement contentions, the motion was DENIED. (Id. at 84:22–85:12). The Court
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`noted that while all experts must testify within the four corners of their reports, where a voluminous
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`appendix is attached, but not discussed or analyzed in the body of the report, such cannot be used
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`to open the door to expert testimony about the appendix before the jury. (Id. at 85:2–12).
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`5.
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`Oxylabs’ Motion for Summary Judgment of Non-Infringement (Dkt. No. 276)
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`The motion was DENIED. (Id. at 105:22–23). The Court found that Dr. Rhyne’s testimony
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`was sufficient to raise a genuine issue of material fact such that summary judgment was improper.
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`(Id. at 105:23–106:3).
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`6.
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`Bright Data’s Motion to Strike Expert Testimony of Kevin Almeroth, PH.D. (Dkt.
`No. 241)
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`The motion was DENIED. (Id. at 133:12).
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`The Court noted that these disputes merely present a situation of dueling experts who have
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`differing opinions. The expert opinions were not sufficiently erroneous or improper to warrant
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`Code200, UAB, et al. v. Bright Data Ltd.
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`exclusion. The jury, as factfinder, will determine which expert is more persuasive and credible.
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`(Id. at 132:4–133:11).
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`7.
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`Oxylabs’ Motion for Summary Judgment of No Indirect Infringement, Willfulness,
`or Exceptional Case (Dkt. No. 269)
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`The motion was GRANTED-IN-PART and DENIED-IN-PART.
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`Regarding contributory infringement, the motion was GRANTED in light of the Court’s
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`prior ruling precluding Dr. Rhyne from opining on the necessary elements of contributory
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`infringement. (Id. at 133:17–19).
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`As to the remaining issues, the motion was DENIED. For induced infringement, the
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`motion to strike was denied because the motion to strike Dr. Rhyne’s opinion on induced
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`infringement was also denied. (Id. at 133:20–23). For willfulness, the inquiry is a matter of
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`culpability and is determined by considering the totality of the circumstances. Halo Elecs., Inc. v.
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`Pulse Elecs., Inc., 136 S. Ct. 1923, 1933 (2016); Gustafson, Inc. v. Intersystem Indus. Prods., Inc.,
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`897 F.2d 508, 510 (Fed. Cir. 1990). There remain facts and circumstances yet to be decided by a
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`jury that could support a willfulness finding, thus the Court declines to grant summary judgment
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`declaring no willfulness. (Dkt. No. 469 at 134:1–5). Finally, the Court noted that one factor to
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`consider in the inquiry for an exceptional case under 28 U.S.C. § 285 is the manner the case was
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`litigated through trial. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554
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`(2014). The Court found that the determination of whether all the conduct, considering the actions
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`of both sides, rises to the level of being truly exceptional is not ripe for review in advance of the
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`trial. (Dkt. No. 469 at 134:9–19). Accordingly, the Court denied the motion for summary judgment
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`on exceptional case status.
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`8.
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`Bright Data’s Motion for Summary Judgment on Defendants’ Counterclaim and
`Defense of Inequitable Conduct (Dkt. No. 240)
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`The motion was CARRED until after the jury trial. (Id. at 135:17–18).
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`The Court will hear Bright Data’s argument, post-verdict, regarding summary judgment of
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`inequitable conduct, to the extent the issue is not mooted by the jury’s verdict.
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`9.
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`Oxylabs’ Motion to Strike Expert Opinions of Stephen L. Becker, Ph.D. (Dkt. No. 236)
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`The Motion was GRANTED-IN-PART and DENIED-IN-PART.
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`The motion was DENIED as to lost profits. (Id. at 166:1–2). The Court was not persuaded
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`that the challenges to the lost profits analysis warranted absolute exclusion and instead determined
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`that such are questions of weight that are fairly dealt with through vigorous cross examination.
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`With respect to the reasonable royalty analysis, the motion was GRANTED and the Court
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`struck paragraphs 161, 162, and 184 as well as exhibits SLB-4A and SLB-4B from Dr. Becker’s
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`expert report. (Id. at 166:9–12). The Court found that Dr. Becker’s reasonable royalty is not tied
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`to the statutory mandate of 35 U.S.C. § 284 because it is not tied to the value of the infringing
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`features as used and enjoyed by the accused infringer. However, the Court declined to strike
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`paragraph 172 of Dr. Becker’s report, as Oxylabs requested.
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`10.
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`Bright Data’s Motion to Strike Expert Testimony of Keith Ugone, Ph.D. (Dkt.
`No. 239)
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`The motion was DENIED. (Id. at 174:21). The Court found that the issues raised are
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`adequately addressed by vigorous cross examination and were not so flawed as to warrant
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`exclusion.
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`11.
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`Bright Data’s Motion to Strike Deposition Testimony of Colin Shribman (Dkt. No.
`425)
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`The motion was CARRIED. (Id. at 176:14–15). The Court determined that the severity of
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`the allegations warranted more than high-level argument or global objections related to the dispute.
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`The Court instructed the Parties to submit their deposition designations and counter-designations
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`along with targeted objections to each by 5:00 P.M. on September 15, 2021. (Id. at 176:14–19,
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`179:8–14, 198:19–23). The Court’s ruling as
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`to such deposition designations and
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`counter-designations shall effectively dispose of and control as to this motion to strike.
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`12.
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`Oxylabs’ Motion for Leave to Exceed Page Limits for Replies Regarding
`Non-Infringement and Invalidity Motions for Summary Judgment (Dkt. No. 371)
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`Before the pretrial conference, the Parties informed the Court that the motion was no longer
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`opposed. Accordingly, the motion was not argued at the pretrial conference, and the motion is
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`GRANTED-AS-AGREED.
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`MOTIONS IN LIMINE
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`It is ORDERED that the Parties, their witnesses, and counsel shall not raise, discuss, or
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`argue the following before the venire panel or the jury without prior leave of the Court:
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`I.
`
`PLAINTIFF’S MOTIONS IN LIMINE (Dkt. No. 364)
`
`Plaintiff’s MIL 1
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`Any evidence, testimony, or argument concerning Mr. Colin Shribman,
`his relationship with Mr. Derry Shribman, communications and
`comments made by either regarding the other, any related litigation
`concerning Mr. Colin Shribman, and/or anything concerning Mr.
`Colin Shribman’s employment or termination thereof.
`
`The MIL was CARRIED. (Dkt. No. 469 at 181:11–12).
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`The Court noted that the MIL will rise and fall with (and be disposed of and controlled by)
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`the Court’s ruling on deposition designations and counter-designations related to Bright Data’s
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`Motion to Strike Deposition Testimony of Colin Shribman (Dkt. No. 425). (Dkt. No. 469 at
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`182:11–18).
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`Plaintiff’s MIL 5
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`Any evidence, testimony, or argument concerning any potential
`purchase of Defendants or any other IP proxy network provider by
`Luminati or its majority shareholder EMK Capital, including any past
`discussions or any anticipated future negotiations.
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`The MIL was GRANTED. (Id. at 190:11–12).
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`The Court was not persuaded that the Plaintiff’s state of mind was relevant to the issue of
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`the Defendants’ willfulness. The Court will act as a gatekeeper to oversee the use of this evidence
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`to the extent that the Court is persuaded that its relevance and probative value outweighs its
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`prejudicial effect.
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`Plaintiff’s MIL 7
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`Any evidence, testimony, or argument tending to denigrate, disparage,
`or insult the United States Patent Office or patent system or that the
`U. S. Patent and Trademark Office is overworked, understaffed, under
`skilled, prone to error, or regarding the qualifications of PTO
`examiners other than general testimony regarding the patent
`examination process.
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`The MIL was GRANTED. (Id. at 193:8–9).
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`The Court noted that neither party will disparage the PTO.
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`II.
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`DEFENDANT’S MOTIONS IN LIMINE (Dkt. No. 362)
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`Defendants’ MIL 10
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`Any reference to or evidence concerning EMK’s purchase of
`Luminati for an “enterprise value” of $200 million or that the
`purchase was motivated by or valued the Asserted Patents.
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`The MIL was GRANTED. (Id. at 190:19–20).
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`Along with Plaintiff’s MIL 5, the Court was not persuaded of the relevance of the evidence
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`and will monitor its use in the role of a gatekeeper. (Id. at 190:15–18).
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`Defendants’ MIL 11
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`Any attempt to “bolster” the U.S. Patent & Trademark Office
`or the Asserted Patents.
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`The MIL was GRANTED. (Id. at 193:8–9).
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`The Court noted that neither party will bolster the PTO.
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`Defendants’ MIL 20
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`Any suggestion that Oxylabs’ discussions with Colin Shribman
`violated any Israel court order or were otherwise improper.
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`The MIL was CARRIED. (Dkt. No. 469 at 181:11–12).
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`The Court noted that the MIL will rise and fall with (and be controlled by) the Court’s
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`ruling on deposition designations and counter-designations related to Bright Data’s Motion to
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`Strike Deposition Testimony of Colin Shribman (Dkt. No. 425). (Dkt. No. 469 at 182:11–18).
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`III.
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`AGREED MOTIONS IN LIMINE (Dkt. Nos. 363, 464, 467)
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`Before the pre-trial conference, the Parties filed their Joint Motion on Stipulated Motions
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`in Limine requesting the Court to enter Agreed MILs 1 through 10 and their Second Joint Motion
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`on Stipulated Motions in Limine requesting the Court to enter Agreed MILs 11 through 16. (Dkt.
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`Nos. 363, 464). At
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`the pre-trial conference, Agreed MILs 1
`
`through 16 were
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`GRANTED-AS-AGREED. (Dkt. No. 469 at 180:22–24). On September 1, 2021, the Parties filed
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`their Third Joint Motion on Stipulated Motions in Limine requesting the Court to enter Agreed
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`MILs 17 through 36. (Dkt. No. 467). Having considered the joint motions, the Court rules that the
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`following MILs are GRANTED-AS-AGREED. Without prior leave of the Court the Parties and
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`the Parties’ fact and expert witnesses are precluded from mentioning or raising the following
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`matters before the jury:
`
`Agreed MIL 1
`
`Evidence, testimony, or argument that references or disparages the
`nationality, race, religion, or political views of any parties or witnesses,
`including but not limited to being or allegedly being Jews, Jewish, or
`Russian, and are precluded from disparaging any party or witness
`because of their location in Israel or Lithuania, or due to his or her
`native language.
`
`Agreed MIL 2
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`Any evidence, testimony, or argument concerning the use, potential
`use, hiring, or reliance on private investigators or litigation consulting
`firms in this case or generally.
`
`Agreed MIL 3
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`Discovery disputes or rulings, or that discovery was provided in
`response to such disputes or rulings.
`
`Agreed MIL 4
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`Evidence, testimony, or argument regarding pre-judgment interest.
`
`Agreed MIL 5
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`Evidence, testimony, or argument concerning the choice of venue in this
`case.
`
`Agreed MIL 6
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`Any reference to or evidence concerning post-trial alleged damages.
`
`Agreed MIL 7
`
`Disparaging an expert’s qualifications in his field of expertise, or
`asserting or arguing that an expert is unqualified in his field of
`expertise, or making any reference to Oxylabs’ counsel (or Oxylabs’
`counsel’s firms or prior firms) having retained Luminati’s experts or
`directed any of Luminati’s experts at trial.
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`Agreed MIL 8
`
`Agreed MIL 9
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`Agreed MIL 10
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`Any evidence, testimony, or argument regarding any post-grant
`proceeding regarding any Luminati patent before the U.S. Patent
`Office or Patent and Trial Appeal Board, including patent inter partes
`review, post-grant reviews, and reexaminations.
`
`Any evidence, testimony, or argument that Luminati’s patents or
`claims are limited to aspects of preferred embodiment(s) in the
`specification.
`
`Any evidence, testimony, or argument alleging or referring to equitable
`issues exclusively reserved for the Court, including but not limited to
`inequitable conduct, the propriety of an injunction, post-trial damages,
`laches, indefiniteness, exceptional case status and related attorney’s
`fees, enhanced damages, 35 U.S.C. § 101, or post and pre-trial interest.
`
`Agreed MIL 11
`
`Testimony from experts not disclosed within their expert reports.
`
`Agreed MIL 12
`
`Any evidence concerning Oxylabs not obtaining or producing an
`opinion of counsel, unless Oxylabs opens the door as to these matters.
`
`Agreed MIL 13
`
`Any reference to any previous Daubert ruling involving any of the
`Parties’ experts.
`
`Agreed MIL 14
`
`Any suggestion that the Parties suffered any damages on account of
`previously asserted but now dismissed non-patent claims.
`
`Agreed MIL 15
`
`Any reference to or purported evidence that either Party ‘hacked’ any
`other Party.
`
`Agreed MIL 16
`
`Any testimony or evidence concerning motions that were denied, or
`claims that were dismissed by the Court.
`
`Agreed MIL 17
`
`Any suggestion that Oxylabs’ reorganizations were done for any
`improper purpose.
`
`Agreed MIL 18
`
`Agreed MIL 19
`
`the website
`concerning
`evidence
`or
`to
`reference
`Any
`www.darksideofluminati.com or Oxylabs’ “Bust the Bully” prior-art
`campaign.
`
`Any reference to or evidence concerning Oxylabs contacting former
`Luminati employees in connection with the Tesonet case other than
`Colin Shribman.
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`Agreed MIL 20
`
`Any reference to or evidence concerning the past or present businesses
`or investments of Oxylabs’ owners (other than the Oxylabs’ entities, or
`Oxylabs’ entities to the extent they have had communications with
`Bright Data, or Oxylabs’ entities to the extent such are discussed in an
`otherwise relevant document).
`
`Agreed MIL 21
`
`Any comparison of the invalidity burden of proof to any other type of
`case that applies a “clear and convincing evidence” burden of proof.
`
`Agreed MIL 22
`
`Agreed MIL 23
`
`Any reference to or evidence concerning third-party products allegedly
`infringing the Asserted Patents other than products of BI Science Ltd.
`aka BI Science Inc.
`
`Any suggestion that Dr. Ugone’s reasonable-royalty opinion is
`improper or “too low” because it is less than (i) the amount Oxylabs
`has spent in litigation or (ii) what Dr. Ugone’s firm has charged
`Oxylabs.
`
`Agreed MIL 24
`
`Any reference to or evidence concerning this Court’s April 8, 2020
`ruling in Tesonet concerning Oxylabs’ press releases relating to the
`conclusion of the Tesonet case.
`
`Agreed MIL 25
`
`Any reference to or evidence concerning Oxylabs’ acquisition
`discussions or communications with BI Science.
`
`Agreed MIL 26
`
`Any reference to or evidence concerning unasserted Bright Data
`patents (other than those referenced in Bright Data’s notice letters to
`Oxylabs).
`
`Agreed MIL 27
`
`Any reference to the Trend Micro report or the Trend Micro lawsuit.
`
`Agreed MIL 28
`
`Any reference to Bright Data tracking Oxylabs’ software development
`kits (“SDKs”), applications incorporating such SDKs, and/or the
`number of devices serving as proxies in the Accused Instrumentalities.
`
`Agreed MIL 29
`
`Any reference to Microleaves other than Microleaves as a competitor.
`
`Agreed MIL 30
`
`Any reference to the Illuminati.
`
`Agreed MIL 31
`
`Any reference to personal lives of witnesses unrelated to business and
`the subject matter of the instant case.
`
`Agreed MIL 32
`
`The Tesonet litigation.
`
`Agreed MIL 33
`
`That a party’s presence in the marketplace benefits competition by
`reducing price or improving performance.
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`Agreed MIL 34
`
`Any party challenging the terms of the settlement agreement or
`arbitration award entered in the Luminati Networks Ltd. v. BI Science
`Inc. matter.
`
`Agreed MIL 35
`
`Any party’s SDK being banned, labeled as malware, or allegedly
`stealing data.
`
`Agreed MIL 36
`
`Any reference to Bright Data’s SDK partner Mobdro or negative press
`stories about Bright Data if they are not discussed as relevant in Dr.
`Ugone’s expert report.
`
`If the Parties desire to introduce any evidence or argument or otherwise raise or mention
`
`any of the foregoing subjects addressed by the MILs set forth herein and before the jury, they must
`
`first approach the bench and obtain a ruling from the Court. The above resolves all remaining
`
`motions in limine other than those carried by the Court regarding Colin Shribman (Plaintiff’s MIL
`
`No. 1 and Defendants’ MIL No. 20), which MILs will rise and fall and be controlled by the Court’s
`
`subsequent ruling on specific deposition designations and counter-designations from Mr.
`
`Shribman’s deposition in this case.
`
`All remaining MILs not covered hereby or otherwise addressed by the Court on the record
`
`are DENIED AS MOOT.
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`DISPUTES AS TO REMAINING PRETRIAL ISSUES
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`The Court ORDEREDtheParties to meet and confer regarding the narrowing of
`
`asserted claims and defenses and to submit a joint status report by 5:00 P.M. on September 15,
`
`2021. (Dkt. No. 469 at 198:24-199:8). The Court also ORDEREDthe Parties to submit a revised
`
`Joint Pretrial Order by 5:00 P.M. on September 15, 2021. (/d. at 199:11—15).
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`So ORDEREDand SIGNEDthis 9th day of September, 2021.
`
` RODNEY GILSTRAP
`
`
`DISTRICT JUDGE
`
`UNITED STATES
`
`Code200, UAB,et al. v. Bright Data Ltd.
`IPR2022-00861, EX. 2043
`14 of 14
`
`