Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 1 of 7 PageID #: 8365
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:19-cv-00200-JRG-RSP
`Case No. 2:19-cv-00237-JRG-RSP
`Case No. 2:19-cv-00310-JRG-RSP
`Case No. 2:19-cv-00311-JRG-RSP
`
`
`GREE, INC.,
`
`Plaintiff,
`
`v.
`SUPERCELL OY,
`Defendant.
`
`ORDER ON MOTIONS IN LIMINE
`The Court heard argument at the Pretrial Conference in the above-captioned case on
`
`February 23, 2021, regarding motions in limine filed by Plaintiff GREE, Inc., (Dkt. No. 186)1,2
`
`and Defendant Supercell Oy, (Dkt. No. 185).3 This Order summarizes and memorializes the
`
`Court’s rulings and reasons, including additional instructions given to the parties. While this Order
`
`memorializes such rulings, it in no way limits or constrains the Court’s rulings as announced into
`
`the record from the bench. Further, a party must approach the bench before introducing evidence
`
`or argument about the subject matter of a motion in limine that has been granted. Accordingly, it
`
`is hereby ORDERED as follows:
`
`A. GREE’s Motions in Limine (Dkt. No. 250)
`
`1. Plaintiff’s MIL No. 1: Motion to Exclude Evidence or Argument of PTAB Proceedings
`
`This motion in limine is CARRIED.
`
`
`1 This Order applies equally to Case No. 2:19-cv-00200-JRG-RSP (“the -200 case”), Case No. 2:19-cv-00237-JRG-
`RSP (“the -237 case”), Case No. 2:19-cv-00310-JRG-RSP (“the -310 case”) and Case No. 2:19-cv-00311-JRG-RSP
`(“the -311 case”). However, for simplicity, unless indicated otherwise, all citations are to the -200 case.
`2 GREE filed identical MILs in the -237 case, the -310 case, and the -311 case. Dkt. No. 169 in the -237 case, Dkt.
`No. 148 in the -310 case, and Dkt. No. 154 in the -311 case.
`3 Supercell filed identical MILs in the -237 case, the -310 case, and the -311 case. Dkt. No. 168 in the -237 case, Dkt.
`No. 147 in the -310 case, and Dkt. No. 153 in the -311 case.
`1
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:19-cv-00200-JRG-RSP
`Case No. 2:19-cv-00237-JRG-RSP
`Case No. 2:19-cv-00310-JRG-RSP
`Case No. 2:19-cv-00311-JRG-RSP
`
`
`GREE, INC.,
`
`Plaintiff,
`
`v.
`SUPERCELL OY,
`Defendant.
`
`ORDER ON MOTIONS IN LIMINE
`The Court heard argument at the Pretrial Conference in the above-captioned case on
`
`February 23, 2021, regarding motions in limine filed by Plaintiff GREE, Inc., (Dkt. No. 186)1,2
`
`and Defendant Supercell Oy, (Dkt. No. 185).3 This Order summarizes and memorializes the
`
`Court’s rulings and reasons, including additional instructions given to the parties. While this Order
`
`memorializes such rulings, it in no way limits or constrains the Court’s rulings as announced into
`
`the record from the bench. Further, a party must approach the bench before introducing evidence
`
`or argument about the subject matter of a motion in limine that has been granted. Accordingly, it
`
`is hereby ORDERED as follows:
`
`A. GREE’s Motions in Limine (Dkt. No. 250)
`
`1. Plaintiff’s MIL No. 1: Motion to Exclude Evidence or Argument of PTAB Proceedings
`
`This motion in limine is CARRIED.
`
`
`1 This Order applies equally to Case No. 2:19-cv-00200-JRG-RSP (“the -200 case”), Case No. 2:19-cv-00237-JRG-
`RSP (“the -237 case”), Case No. 2:19-cv-00310-JRG-RSP (“the -310 case”) and Case No. 2:19-cv-00311-JRG-RSP
`(“the -311 case”). However, for simplicity, unless indicated otherwise, all citations are to the -200 case.
`2 GREE filed identical MILs in the -237 case, the -310 case, and the -311 case. Dkt. No. 169 in the -237 case, Dkt.
`No. 148 in the -310 case, and Dkt. No. 154 in the -311 case.
`3 Supercell filed identical MILs in the -237 case, the -310 case, and the -311 case. Dkt. No. 168 in the -237 case, Dkt.
`No. 147 in the -310 case, and Dkt. No. 153 in the -311 case.
`1
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`
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`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 2 of 7 PageID #: 8366
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`2. Plaintiff’s MIL No. 2: Motion to Exclude Evidence or Argument Regarding the Dollar
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`Amount of the Non-Comparable Thomson Licenses
`
`On this motion in limine it is AGREED that, to the extent the Thompson licenses are relied
`
`upon, they may be identified as based on a lump sum, but the dollar amount shall not be disclosed.
`
`3. Plaintiff’s MIL No. 3: Motion to Exclude Evidence or Argument based on
`
`Nationality/Location
`
`This motion in limine is AGREED that:
`
`The parties may not offer evidence, testimony, argument or make
`reference to Tencent being based in China. To the extent Supercell’s
`MIL No. 2 is denied, the parties may refer to Tencent as a foreign
`organization. The parties may also refer to GREE as a Japanese
`company and may refer to Supercell as a Finnish company. Each
`party agrees that such references to Tencent as a foreign company
`(if any), GREE as a Japanese company, and Supercell as a Finnish
`company will be limited and not disparaging.
`
`as filed in the Joint Notice of Agreement Regarding Motions in Limine (Dkt. No. 209).
`
`4. Plaintiff’s MIL No. 4: Motion to Exclude Testimony of GREE’s Corporate
`
`Representative on Obviousness
`
`This motion in limine is GRANTED with respect to Masaki Fujimoto’s February 6, 2020
`
`testimony on page 114 lines 12–20 regarding whether the technology was obvious, both because
`
`it calls for an opinion and under Federal Rule of Evidence 403. It is DENIED with respect to the
`
`rest of Masaki Fujimoto’s February 6, 2020 testimony on pages 112–14 through line 10.
`
`5. Plaintiff’s MIL No. 5: Motion to Exclude Argument or Evidence Regarding Discovery
`
`Disputes
`
`This motion in limine is GRANTED by agreement except as to the issue of stricken source
`
`code, which is addressed by Defendant’s Motion in Limine No. 4.
`
`
`
`2
`
`
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`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 3 of 7 PageID #: 8367
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`6. Plaintiff’s MIL No. 6: Motion to Exclude Argument, Evidence, or Testimony Regarding
`
`Japan’s Kompu Gacha Regulations
`
`This motion in limine is GRANTED to the extent of not allowing any testimony that any
`
`former kompu gacha activity was deemed illegal or in any way wrongful, but it does not prohibit
`
`testimony that the game was changed in response to a change in Japanese regulations.
`
`7. Plaintiff’s MIL No. 7: Motion to Exclude Argument, Evidence, or Testimony Regarding
`
`the Parties’ Compromise Negotiations
`
`This motion in limine is DENIED without prejudice to assertions of Rule 408 in objections
`
`to particular elements of deposition, testimony, or exhibits.
`
`8. Plaintiff’s MIL No. 8: Motion to Exclude Audio Portion of Third-Party Videos
`
`This motion in limine is GRANTED to the extent of the audio portion and any captions
`
`added before the videos were uploaded. The Court clarifies that the visual images, as long as they
`
`have been authenticated by YouTube as to the date they were posted, constitute admissible
`
`evidence that what is depicted existed at least as of that date.
`
`9. Plaintiff’s MIL No. 9: Motion to Exclude Testimony from Corporate Representatives
`
`and Inventor Regarding “Invention,” “Improvement,” or “Point of Novelty”
`
`This motion in limine is DENIED because these issues depend too heavily on the particular
`
`deposition questions that are at issue.
`
`10. Plaintiff’s MIL No. 10: Motion to Preclude Supercell’s Reliance on a “Good-Faith
`
`Belief” Defense to Willful Infringement
`
`This motion in limine is DENIED. However, Supercell has represented that it will not rely
`
`on any advice of counsel defense, so it may not refer to counsel as a basis for any good faith belief.
`
`
`
`3
`
`
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`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 4 of 7 PageID #: 8368
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`11. Plaintiff’s MIL No. 11: Motion to Preclude Evidence of No-Longer-Asserted Claims,
`
`Patents, Accused Products, Infringement Theories, and/or Asserted Prior Art
`
`This motion in limine is GRANTED to the extent that mentioning the fact other patent
`
`claims were once asserted and have since been dropped is prohibited.
`
`12. Plaintiff’s MIL No. 12: Motion to Exclude Prejudicial Images, Game Themes, or
`
`Storylines
`
`This motion in limine is GRANTED with respect to the seven identified exhibits
`
`(Defendants Exhibits 247, 252, 254, 255, 256, 258, 259) and any images from Zombie Jombie,
`
`SinoAlice, and DanMachi. Defendant may assert that Plaintiff has opened the door if Plaintiff
`
`seeks to cast Defendant in a bad light or burnish its own appearance by talking about unrelated
`
`games (other than Fishing Star).
`
`B.
`
`Supercell’s Motions in Limine (Dkt. Nos. 249, 314)
`
`1. Defendant’s MIL No. 1: Exclude Evidence, Testimony, Argument or Reference
`
`Regarding Supercell’s Total Revenue, Total Revenue from the Accused Products, Revenue from
`
`Other Non-Accused Products, or Profits
`
`This motion in limine is AGREED. There shall be no mention or reference of Supercell’s
`
`revenues from non-accused products. Parties may discuss profits and revenues from the accused
`
`products in the United States. Parties may also discuss on a relative basis the revenues between
`
`Japan and the United States, but not disclose the total amounts in Japan.
`
`2. Defendant’s MIL No. 2: Exclude Evidence, Testimony, or Argument Regarding
`
`Supercell’s Funding, Valuations, Ownership, or Identity of Its Board Of Directors
`
`This motion in limine is GRANTED to the extent it was in Case No. 2:19-cv-00070-JRG-
`
`RSP. Further, GREE shall not refer to the number of employees of TenCent, but if Supercell
`
`
`
`4
`
`
`
`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 5 of 7 PageID #: 8369
`
`overly emphasizes its small size (300 employees), GREE may seek leave to refer to the size of
`
`Supercell’s parent, TenCent (60,000 employees).
`
`3. Defendant’s MIL No. 3: Exclude Testimony or Argument Suggesting Liability Based
`
`on the Parties’ Settlement Agreement
`
`This motion in limine is DENIED at this time. The Court will take up these issues on the
`
`admissibility of the license as an exhibit.
`
`4. Defendant’s MIL No. 4: Exclude Evidence, Testimony, Argument or Reference to Any
`
`Stricken Prior Art Source Code
`
`This motion in limine is GRANTED. GREE is not permitted to cross-examine regarding
`
`the stricken source code.
`
`5. Defendant’s MIL No. 5: Exclude Evidence, Testimony, Argument or Reference to the
`
`Parties’ Prior Jury Trial and Its Results
`
`This motion in limine is GRANTED.
`
`6. Defendant’s MIL No. 6: Exclude Testimony Contrary to Claim Construction Order
`
`This motion in limine is DENIED as unnecessary.
`
`7. Defendant’s MIL No. 7: Exclude Expert Opinion Testimony Not Previously Disclosed
`
`in Expert Reports
`
`This motion in limine is DENIED as unnecessary.
`
`8. Defendant’s MIL No. 8: Exclude Evidence, Testimony, Argument or Reference to
`
`Political Statements, Beliefs, and Affiliations
`
`This motion in limine is AGREED that:
`
`The parties agree that they will not offer evidence, testimony, or
`argument regarding, or otherwise make reference to, the political
`statements, beliefs and affiliations of Supercell/Supercell employees
`or GREE/GREE employees.
`
`
`
`5
`
`
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`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 6 of 7 PageID #: 8370
`
`
`as filed in the Joint Notice of Agreement Regarding Motions in Limine (Dkt. No. 209).
`
`9. Defendant’s MIL No. 9: Exclude Testimony from Supercell’s Corporate Representative
`
`that Calls for Legal Conclusions Regarding Affirmative Defenses
`
`This motion in limine is AGREED. Supercell’s corporate representative will not testify on
`
`direct regarding the affirmative defenses of non-infringement and invalidity and GREE will not
`
`play his testimony in response. These matters may be raised on the equitable side to the bench, but
`
`not before the jury.
`
`10. Defendant’s MIL No. 10: Exclude Evidence, Argument, Testimony, or Reference That
`
`Gree’s Pre-Suit Notice Letters Identifying Foreign Patents and A U.S. Patent Application to a
`
`Now-Invalidated Patent Supports Willfulness
`
`This motion in limine is DENIED.
`
`11. Defendant’s MIL No. 11: Exclude Posts or Comments Made on Twitter, Reddit,
`
`Forums, Blogs, or Other Websites Regarding Removal of Game Functionalities
`
`This motion in limine is DENIED without prejudice to revisiting at the hearing on exhibits.
`
`C. Other Motions in Limine (Dkt. No. 209; Dkt. No. 224)
`
`1. Other MIL No. 1: Motion to Exclude Evidence or Argument Referring to GREE as
`
`Litigious, a Troll or Focused on Filing Lawsuits
`
`This motion in limine is AGREED that:
`
`The parties agree not to refer to any party in this case, or any
`individual or entity associated with a party in this case, in derogatory
`terms, such as “patent troll,” “lawsuit factory,” “shell company,”
`“litigious,” “non-practicing entity,” or any similar terms.
`
`as filed in the Joint Notice of Agreement Regarding Motions in Limine (Dkt. No. 209).
`
`2. Other MIL No. 2: Motion to Exclude Evidence or Argument Regarding Copying
`
`
`
`6
`
`
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`Case 2:19-cv-00311-JRG-RSP Document 212 Filed 03/08/21 Page 7 of 7 PageID #: 8371
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`This motion in limine is AGREED that:
`
`Neither party may offer attorney argument, testimony, or other
`evidence that either party copied, cloned, stole, or imitated anything,
`including game development and design ideas, game features,
`business models or monetization strategies, from the opposing party
`or from third parties.
`
`as filed in the Second Joint Notice of Agreement Regarding Motions in Limine (Dkt. No. 224).
`
`
`
`
`
`7
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`SIGNED this 3rd day of January, 2012.
`
`SIGNED this 8th day of March, 2021.
`
`
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