Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 1 of 22
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`KOSS CORPORATION,
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant
`
`
`
`
`
`Case No. 6:20-cv-00665-ADA
`
`JURY TRIAL DEMANDED
`
`FINAL PRETRIAL ORDER
`
`The Court hereby issues its final pretrial order.
`
`
`
`1
`
`
`
`
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 2 of 22
`
`I.
`
`APPEARANCE OF COUNSEL
`
`ATTORNEYS FOR KOSS CORPORATION
`
`
`Peter E. Soskin (pro hac vice)
`Darlene F. Ghavimi
`K&L GATES LLP
`Texas Bar No. 24072114
`K&L GATES LLP
`4 Embarcadero Center, Suite 1200
`San Francisco, CA 94111
`2801 Via Fortuna, Suite #650
`Tel: (415) 882-8200
`Austin, TX 78746
`Fax: (415) 882-8220
`Tel: (512) 482-6800
`peter.soskin@klgates.com
`Fax: (512) 482-6859
`
`darlene.ghavimi@klgates.com
`
`
`Christopher J. Valente (pro hac vice)
`Jim Shimota (pro hac vice)
`K&L GATES LLP
`Benjamin E. Weed (pro hac vice)
`One Lincoln Street
`Philip A. Kunz (pro hac vice)
`Boston, MA 02111
`Gina A. Johnson (pro hac vice)
`Tel: (617) 951-9071
`Melissa M. Haulcomb (pro hac vice)
`Fax: (617) 261-3175
`Amanda C. Maxfield (pro hac vice)
`K&L GATES LLP
`christopher.valente@klgates.com
`
`70 W. Madison Street, Suite 3100
`David R. Fine (pro hac vice)
`Chicago, IL 60602
`K&L Gates LLP
`Tel: (312) 372-1121
`Market Square Plaza
`Fax: (312) 827-8000
`17 North Second St., 18th Fl.
`jim.shimota@klgates.com
`Harrisburg, PA 17101
`benjamin.weed@klgates.com
`Tel: (717) 231-5820
`philip.kunz@klgates.com
`Fax: (717) 231-4501
`gina.johnson@klgates.com
`david.fine@klgates.com
`melissa.haulcomb@klgates.com
`
`amanda.maxfield@klgates.com
`
`David N. Deaconson
`
`Texas Bar No. 05673400
`PAKIS, GIOTES, PAGE
`& BURLESON, P.C.
`400 Austin Ave, Suite 400
`Waco, Texas 76701
`Tel: (254) 297-7300
`deaconson@pakislaw.com
`
`
`2
`
`
`
`
`
`
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 3 of 22
`
`ATTORNEYS FOR APPLE INC.
`
`Michael T. Pieja (pro hac vice)
`Alan E. Littmann (pro hac vice)
`Doug Winnard (pro hac vice)
`Samuel E. Schoenburg (pro hac vice)
`Jennifer M. Hartjes (pro hac vice)
`Sarah Kinter (pro hac vice to be filed)
`GOLDMAN ISMAIL TOMASELLI
`BRENNAN & BAUM LLP
`200 South Wacker Dr., 22nd Floor
`Chicago, IL 60606
`Tel: (312) 681-6000
`Fax: (312) 881-5191
`mpieja@goldmanismail.com
`alittmann@goldmanismail.com
`dwinnard@goldmanismail.com
`sschoenburg@goldmanismail.com
`jhartjes@goldmansimail.com
`skinter@goldmanismail.com
`
`
`
`Stephen E. McConnico
`State Bar No. 13450300
`Steven J. Wingard
`State Bar No. 00788694
`Stephen L. Burbank
`State Bar No. 24109672
`Paige Arnette Amstutz
`State Bar No. 00796136
`Scott Douglass & McConnico
`Colorado Tower
`303 Colorado St., Ste. 2400
`Austin, TX 78701
`Tel: (512) 495-6300
`Fax: (512) 495-6399
`smcconnico@scottdoug.com
`swingard@scottdoug.com
`sburbank@scottdoug.com
`pamstutz@scottdoug.com
`
`II.
`
`STATEMENT OF JURISDICTION
`
`This Court has subject-matter jurisdiction of the action under Title 28, U.S.C. §§ 1331 and
`
`1338(a), because this action arises under the Patent Laws of the United States, 35 U.S.C. § 1 et
`
`seq. Subject-matter jurisdiction, personal jurisdiction, and venue under 28 U.S.C. §§ 1391(b) and
`
`1400(b) are not disputed in this case.
`
`III.
`
`JOINT STATEMENT OF THE CASE
`
`This is a civil action for patent infringement in which Plaintiff Koss Corporation (“Koss”)
`
`accuses Defendant Apple Inc. (“Apple”) of infringing claims 8 and 10 of U.S. Patent No.
`
`10,469,934 (“’934 Patent”) and claim 61 of U.S. Patent No. 10,491,982 (“’982 Patent”)
`
`(collectively, the “Asserted Claims”) by making, using, selling, offering for sale, or importing the
`
`U.S. various headphone products, including certain AirPods line of headphone products and
`
`various Beats-branded headphone products. The accused products include: AirPods (2nd, and 3rd
`
`Generation); AirPods Pro; AirPods Max; Powerbeats (2, 3, and 4); Powerbeats Pro; Beats Fit Pro;
`
`
`
`3
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 4 of 22
`
`Beats Studio3; Beats Solo3; and Beats Solo Pro.1 Plaintiff seeks pre-verdict reasonable royalty
`
`damages to compensate Koss for the alleged infringement and an on-going per-unit royalty rate
`
`for future infringement for the remaining life of the Asserted Patents. Plaintiff contends that
`
`Defendant’s infringement was willful.
`
`Apple alleges that it does not infringe, directly or indirectly, any Asserted Claim of the
`
`Asserted Patents. Apple further alleges that it does not willfully infringe any Asserted Claim of
`
`the Asserted Patents. Apple further alleges that the Asserted Claims are invalid as being anticipated
`
`or obvious, or for lacking enablement or written description. Apple further alleges that the Asserted
`
`Patents are unenforceable under the doctrine of prosecution laches. Apple alleges that Koss is not
`
`entitled to any damages. In the event Apple is found to have infringed a valid claim, Apple disputes
`
`the amount of damages that should be awarded to Koss. To the extent any damages are awarded,
`
`Apple alleges that damages should be a reasonable royalty in the form of a fully-paid-up lump sum
`
`license.
`
`
`1 Koss: The Accused Products also include the AirPods 1st generation and the Beats Studio Buds.
`Apple: The AirPods 1st generation is no longer an Accused Product because it was not sold after
`the earliest issue date of the remaining patents-in-suit. The Studio Buds are no longer an Accused
`Product because Koss did not assert, through its infringement expert report, allegations against the
`Studio Buds for claim 61 of the ’934 Patent or claims 8 and 10 of the ’982 Patent.
`Court: Disputes regarding the Studio Buds will be heard as an objection when expert testimony
`is offered. The parties shall approach the bench, and Koss shall indicate where its expert reports
`include allegations against the Studio Buds for claim 61 of the ’934 Patent or claims 8 and 10 of
`the ’982 Patent. Koss may contend that Accused Products include AirPods 1st generation if it has
`evidence of infringement, and Apple may seek a directed verdict or judgement as a matter of law
`regarding the AirPods if Koss presents no evidence of sales during the lifetime of the remaining
`patents.
`
`
`
`4
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 5 of 22
`
`IV. CONTENTIONS OF THE PARTIES
`
`A.
`
`Plaintiff’s Statement of Contentions
`
`Koss is the sole and rightful owner of the ’982 Patent (entitled “System with Wireless
`
`Earphones”) and the ’934 Patent (entitled “System with Wireless Headphones”), with full rights
`
`to pursue recovery of royalties or damages for infringement, including for Apple’s infringement,
`
`thereof. Defendant directly, indirectly, and willfully infringed the Asserted Claims of the ’982
`
`Patent and the ’934 Patent under 35 U.S.C. § 271 by making, using, selling, offering to sell, or
`
`importing in the U.S. their AirPods and Beats lines of headphone products in violation of 35 U.S.C.
`
`§ 271. The Asserted Claims are not unenforceable for any reason, including because of alleged
`
`inequitable conduct or prosecution laches, or for any other reason Apple may contend supports a
`
`finding of unenforceability.
`
`Koss contends that it is not barred by the Confidentiality Agreement with Apple from using
`
`or attempting to use, or from using or disclosing the existence of, any pre-suit communications
`
`between the parties during the term of the Agreement in this litigation, including at trial, for any
`
`purpose, including to show notice, knowledge, induced infringement, or willful infringement of
`
`any patent, or to support any other request for enhanced damages, fees, or costs in this or any
`
`litigation.
`
`Koss contends that Apple is not entitled to any relief with regard to the Confidentiality
`
`Agreement, and in particular that Apple is not entitled to a permanent injunction enjoining Koss
`
`from using or attempting to use, or from disclosing the existence of, any pre-suit communications
`
`between the parties during the term of the Confidentiality Agreement in any future litigation or
`
`any other administrative or court proceeding, for any purpose.
`
`Koss seeks the following relief:
`
`1. A judgment that Defendant has infringed the ’982 Patent;
`
`
`
`5
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 6 of 22
`
`2. A judgment that Defendant has infringed the ’934 Patent;
`
`3. A judgment and order requiring Defendant to pay Plaintiff damages under 35 U.S.C. §
`284, together with pre-judgment and post-judgment interest;
`
`4. A judgment and order requiring Defendant to pay Plaintiff the costs of this action;
`
`5. A judgment and order awarding enhanced damages to Plaintiff, including treble damages
`for willful infringement, under 35 U.S.C. § 284;
`
`6. A judgment and order declaring this case to be exceptional based on Defendant’s
`infringement and/or litigation conduct; and
`
`7. A judgment and order awarding attorneys’ fees to Plaintiff under 35 U.S.C. § 285.
`
`Plaintiff contends that the ’982 Patent and the ’934 Patent are valid and enforceable, and
`
`that its claims are not barred or otherwise limited as a result of any of the affirmative defenses
`
`raised by Defendant.
`
`B.
`
`Defendant’s Statement of Contentions
`
`Apple contends as follows:
`
`1.
`
`2.
`
`Apple does not infringe any asserted claim of the ’934 or ’982 Patents.
`
`The Accused Products do not include each element of any asserted claim, and
`
`therefore do not directly infringe as a matter of law.
`
`3.
`
`4.
`
`Apple has not induced, and does not induce, infringement of any asserted claim.
`
`Apple has not contributorily infringed, and does not contributorily infringe, any
`
`asserted claim.
`
`5.
`
`Apple has not willfully infringed, and does not willfully infringe, any asserted
`
`claim.
`
`6.
`
`Each asserted claim of each Asserted Patent is invalid because it is either
`
`anticipated by the prior art and/or is obvious in view of the prior art under 35 U.S.C. §§ 102 and/or
`
`103;
`
`
`
`6
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 7 of 22
`
`7.
`
`Each of the asserted claims of the Asserted Patents is invalid for failure to meet the
`
`written description and enablement requirements under 35 U.S.C. § 112;
`
`8.
`
`The Asserted Patents are unenforceable due to the inequitable conduct of Michael
`
`J. Koss, Sr., a named inventor of the Asserted Patents and Chief Executive Officer of Koss
`
`Corporation, including the following misconduct:
`
`a. Falsely and repeatedly misrepresenting to the United States Patent and
`
`Trademark Office (PTO) that Mr. Koss and his co-inventors had invented
`
`technology that he knew he and his co-inventors did not invent. In particular,
`
`Mr. Koss falsely told the PTO that he and his co-inventors had invented a pair
`
`of wireless earphones that were not connected by a wire and which could
`
`receive audio data over Bluetooth from a data source. In truth, Mr. Koss and his
`
`co-inventors did not believe this was possible and never conceived of, or
`
`attempted to implement, such a headphone system;
`
`b. Falsely misrepresenting to the PTO that Bluetooth was a “suitable”
`
`communication protocol for sending audio data from a source to two wireless
`
`earphones that were not connected by a wire. In truth, Mr. Koss believed that
`
`Bluetooth technology had several limitations that made it unsuitable, if not
`
`impossible, for sending audio data from one source to two wireless earphones
`
`that were not connected by a wire; and
`
`c. Withholding from the PTO the existence and functionalities of Koss’ own prior
`
`art Bluetooth headphone product known as the “Cobalt,” even though Mr. Koss
`
`knew of that product and its capabilities.
`
`
`
`7
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 8 of 22
`
`9.
`
`Koss is barred by Section 5 of its Confidentiality Agreement with Apple from using
`
`or attempting to use, or from using or disclosing the existence of, any pre-suit communications
`
`between the parties during the term of the Agreement in this litigation, including at trial, for any
`
`purpose, including to show notice, knowledge, induced infringement, or willful infringement of
`
`any patent, or to support any other request for enhanced damages, fees, or costs in this or any
`
`litigation.
`
`10.
`
`Apple is entitled to a permanent injunction enjoining Koss from using or attempting
`
`to use, or from disclosing the existence of, any pre-suit communications between the parties during
`
`the term of the Confidentiality Agreement in any future litigation or any other administrative or
`
`court proceeding, for any purpose.
`
`11.
`
`The Asserted Patents are unenforceable with respect to Apple under the doctrine of
`
`unclean hands. In particular:
`
`a. Koss obtained rights in and to the Asserted Patents to which it was not lawfully
`
`entitled through the affirmative and egregious misconduct that constituted
`
`Koss’ inequitable conduct; and
`
`b. Koss asserted claims of action with respect to the Asserted Patents, including
`
`claims for indirect infringement and willful infringement, that rely solely on
`
`communications whose use in litigation is barred by, and that Koss knew or
`
`should have known were barred by, the Confidentiality Agreement between
`
`Koss and Apple. Koss used Apple’s good-faith participation in negotiating and
`
`agreeing to the Confidentiality Agreement in a manner that constitutes business
`
`misconduct by, for example, leading Apple to believe that Koss would honor
`
`the Agreement and refrain from using communications covered by the
`
`
`
`8
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 9 of 22
`
`Confidentiality Agreement against Apple in litigation, and thereby inducing
`
`Apple to participate in substantive discussions with Koss, after which Koss
`
`violated the Confidentiality Agreement.
`
`12.
`
`The Asserted Patents are unenforceable with respect to Apple under the doctrine of
`
`prosecution laches because Koss engaged in an unexplained and unreasonable delay of over nine
`
`years in the prosecution of the Asserted Patents, and because this delay has prejudiced Apple.
`
`13.
`
`14.
`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`20.
`
`Koss is not entitled to a finding of infringement.
`
`Koss is not entitled to a finding of willful infringement.
`
`Koss is not entitled to a finding of contributory infringement.
`
`Koss is not entitled to a finding of induced infringement.
`
`Koss is not entitled to a finding of indirect infringement.
`
`Apple is not liable to Koss under any cause of action or legal theory Koss asserts.
`
`Koss is not entitled to damages at all or in the amount that Koss seeks.
`
`Should either Asserted Patent be determined to be not invalid, infringed, and not
`
`unenforceable, Koss’ damages calculations are inflated and inaccurate, for at least the following
`
`reasons:
`
`a. The choice-based conjoint consumer survey on which Koss bases its damages
`
`calculations mis-defined the feature representing Koss’ patented technology to
`
`survey respondents;
`
`b. Koss failed to apportion between patented and unpatented technologies;
`
`c. Koss failed to apportion between infringing and non-infringing uses; and
`
`d. Koss’ damages expert has no factual basis to assert the comparability of the
`
`MFi License to a hypothetical license for the Asserted Patents.
`
`
`
`9
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 10 of 22
`
`21.
`
`Should either Asserted Patent be determined to be not invalid, infringed, and not
`
`unenforceable, damages, if any, should be not more than the amounts set forth in the expert report
`
`of Thomas Britven, awarded as a fully-paid-up lump sum amount for a non-exclusive, perpetual,
`
`geographically-unrestricted license to the Asserted Patents.
`
`22.
`
`Should either Asserted Patent be determined to be not invalid, infringed, and not
`
`unenforceable, damages, if any, can commence no earlier than the date of first release of the Smart
`
`Routing feature, which Koss accuses of infringement and which, under Koss’ theory of
`
`infringement, is required by all asserted claims.
`
`23.
`
`This case is exceptional, and Apple is entitled to an order requiring Koss to pay its
`
`costs and attorneys’ fees reasonably incurred in defending this action.
`
`24.
`
`Any attempt by Koss to use the parties’ presuit communications, as described in
`
`Plaintiff’s statement of contentions, above, in this litigation, would constitute a further breach of
`
`the Confidentiality Agreement and a violation of the Court’s summary judgment order directing
`
`that Koss specifically perform under the Confidentiality Agreement. Apple is and would be
`
`entitled to an injunction against such breach and all appropriate relief for Koss’ failure to comply
`
`with an Order of the Court.
`
`V.
`
`CLAIM CONSTRUCTION
`
`The Court has determined that the words of the asserted claims are to be given their plain
`
`and ordinary meaning.
`
`VI.
`
`STIPULATED FACTS
`
`The parties agree to the following stipulated facts:
`
`1.
`
`This Court has jurisdiction over the parties and all claims and defenses in this
`
`action.
`
`
`
`10
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 11 of 22
`
`2.
`
`Koss Corporation is a corporation existing under the laws of the State of Delaware
`
`having its principal place of business located at 4129 North Port Washington Avenue, Milwaukee,
`
`Wisconsin 53212.
`
`3.
`
`Apple Inc. is a California corporation having its principal place of business at One
`
`Apple Park Way, Cupertino, California 95014.
`
`4.
`
`Provisional Application No. 61/123,265 (“the ’265 Application”) was filed on April
`
`7, 2008.
`
`5.
`
`U.S. Patent No. 10,469,934 (“the ’934 Patent”) was filed on April 5, 2019, and
`
`issued on November 5, 2019.
`
`6.
`
`U.S. Patent No. 10,491,982 (“the ’982 Patent”) was filed on August 1, 2019, and
`
`issued on November 26, 2019.
`
`7.
`
`The ’934 Patent and ’982 Patent (together, “Asserted Patents”) bear a common title:
`
`“System With Wireless Earphones.”
`
`8.
`
`9.
`
`The Asserted Patents share a common specification.
`
`The Asserted Patents both claim priority to the ’265 Application.
`
`10.
`
`Koss Corporation is the owner of all rights, title, and interest in the Asserted
`
`Patents.
`
`11.
`
`Koss Corporation filed its Original Complaint for Patent Infringement asserting
`
`infringement of the Asserted Patents on July 22, 2020.
`
`12.
`
`Apple Inc. filed its Third Amended Answer, Affirmative Defenses, and
`
`Counterclaims to Plaintiff and Counter-Defendant Koss Corporation’s Complaint for Patent
`
`Infringement on April 14, 2022.
`
`
`
`11
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 12 of 22
`
`VII. EXHIBIT LIST
`
`A Joint Exhibit List, including documents identified by both parties and not objected to, is
`
`attached as Exhibit A-1. Koss’ Exhibit List is attached as Exhibit A-2. Apple’s Exhibit List is
`
`attached as Exhibit A-3. Koss’ Physical Exhibit list is attached hereto as Exhibit A-4.
`
`VIII. WITNESS LIST
`
`Koss’ witness list for the jury trial is attached as Exhibit B-1. Apple’s witness list for the
`
`jury trial is attached as Exhibit B-2.
`
`IX. DEPOSITION DESIGNATIONS
`
`Koss’ deposition designations, with Apple’s objections and counter-designations, and
`
`Koss’ further objections and counter-counter designations are attached as Exhibit C-1. Apple’s
`
`deposition designations, with Koss’ objections and counter-designations, and Apple’s further
`
`objections and counter-counter designations are attached as Exhibit C-2.
`
`X.
`
`DISCOVERY DESIGNATIONS
`
`Koss’ discovery designations, with Apple’s objections, are attached as Exhibit D-1.
`
`Apple’s discovery designations, with Koss’ objections, are attached as Exhibit D-2.
`
`XI. HANDLING OF SOURCE CODE AND CONFIDENTIAL MATERIAL
`
`The parties agree to request that the courtroom be sealed when a party’s confidential
`
`information, including source code or evidence concerning highly-sensitive business documents,
`
`testimony, or information is expected to be presented.
`
`Regarding source code, the parties will comply with the provisions of the Protective Order
`
`regarding source code to the extent either party intends to use source code at trial. Only the specific
`
`code files or source code pages discussed at trial may be offered into evidence to become part of
`
`
`
`12
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 13 of 22
`
`the record, not the entirety of the printed source code hard copies during fact discovery or their
`
`electronic image.
`
`XII. PROPOSED JURY INSTRUCTIONS
`
`The parties’ Proposed Preliminary Jury Instructions and Proposed Final Jury Instructions
`
`are attached as Exhibit E-1.
`
`XIII. VERDICT FORM
`
`Koss’ proposed verdict form is attached as Exhibit F-1. Apple’s proposed verdict form is
`
`attached as Exhibit F-2.
`
`XIV. PROPOSED VOIR DIRE QUESTIONS
`
`Koss’ proposed voir dire questions are attached as Exhibit G-1. Apple’s proposed voir dire
`
`questions are attached as Exhibit G-2.
`
`XV. MEMORANDA ON DISPUTED ISSUES OF LAW
`
`The parties have disputed issues of law and/or fact regarding infringement, invalidity,
`
`willfulness, and the exceptional nature of this case; however, the parties agree that these are not
`
`unique issues of law and fact that require memoranda to the Court at this time, other than the papers
`
`already presented to the Court.
`
`XVI. MOTIONS IN LIMINE
`
`The parties’ agreed Motions in Limine are attached as Exhibit H-1.
`
`XVII. LIST OF OTHER PENDING MOTIONS
`
` Koss Corporation’s Motion to Dismiss its Second Cause of Action For Patent
`
`Infringement of U.S. Patent No. 10,291,451 Without Prejudice or in the Alternative to Sever and
`
`Stay the Same, Dkt. No. 252.
`
`
`
`13
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 14 of 22
`
`XVIII. TRIAL DISCLOSURES
`
`The parties agree to the following procedures which will govern the disclosure of
`
`witnesses, exhibits, deposition testimony, and demonstratives to use at trial, and the process to
`
`identify any objections remaining between the parties with regard to these disclosures.
`
`A. Motions
`
`All motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) may be
`
`brought to the Court orally or in writing. Unless the Court sets alternative deadlines, all oppositions
`
`to motions filed pursuant to Fed. R. Civ. P. 50(b) must be filed within 28 days of the filing of the
`
`Motion. All replies in support of the motions must be filed within 21 days of service of any
`
`oppositions. The parties reserve their right to seek reasonable extensions of these deadlines, subject
`
`to the Court’s approval.
`
`B.
`
`Juror Research
`
`The parties agree that before and during the trial, the parties to this case, and their respective
`
`employees, attorneys, and agents, including jury consultants shall not access nonpublic user data
`
`or other information maintained by an online content provider or electronic social media platform
`
`regarding any juror or potential juror. Nothing in this paragraph shall prevent the parties from
`
`accessing information about jurors and potential jurors that is available to members of the general
`
`public without any access restrictions, including information on social media accounts.
`
`C.
`
`Exhibits and Demonstratives
`
`Plaintiff’s trial exhibits are identified with the prefix “P,” starting with P-1 and Defendant’s
`
`trial exhibits are identified with the prefix “D,” starting with D-1. Joint trial exhibits are identified
`
`with the prefix “J,” starting with J-1.
`
`The Exhibit Lists set forth the parties’ exhibits for their respective cases-in-chief. The
`
`maximum universe of exhibits to be used in any party’s case-in-chief and all objections to the
`
`
`
`14
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 15 of 22
`
`admission of such exhibits shall be identified in each party’s exhibit list to be submitted to the
`
`Court one week from the date of this pretrial order, neither of which shall be supplemented without
`
`approval of all parties or leave of the Court, on good cause shown. Exhibits not listed will not be
`
`admitted unless good cause is shown. However, exhibits to be used or offered into evidence solely
`
`for impeachment need not be included on the list of trial exhibits or disclosed in advance of being
`
`used or offered at trial.
`
`No exhibit will be admitted unless offered into evidence through a witness, who must at
`
`least be shown the exhibit. Exhibits with noted objections may not be published, displayed, or
`
`otherwise shown to the jury until after they have been admitted into evidence.
`
`The parties agree that any description of a document on an exhibit list is provided for
`
`convenience only and shall not be used as an admission or otherwise as evidence regarding the
`
`listed document or any other listed document.
`
` The listing of a document on a party’s exhibit list is not an admission that such document
`
`is relevant or admissible when offered by the opposing party for what the listing party contends is
`
`an improper purpose. 2 This agreement does not waive any party’s objection to the admissibility
`
`of that exhibit.
`
`If a party removes a document from its exhibit list without agreement from the other party,
`
`it must provide the other party with notice of the same and an opportunity to add the document to
`
`its exhibit list. Subject to all foundational requirements and other objections that might be made to
`
`
`2 Court: The parties may use each other’s exhibits listed on the parties’ respective exhibit lists
`attached hereto to the same effect as though it were on its own exhibit list, subject to all evidentiary
`objections and Court orders. Any exhibit, once admitted at trial, may be used by either party with
`any witness, including an expert witness, for any proper purpose in accordance with the Federal
`Rules of Evidence. Koss may not use exhibits covered by the Court’s order that Koss specifically
`perform its obligations under Section 5 of the parties’ Confidentiality Agreement unless Koss first
`approaches the bench to show that Apple has opened the door.
`
`
`
`15
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 16 of 22
`
`the admissibility of the original, a legible copy of any exhibit may be offered into evidence in lieu
`
`of the original. Legible photocopies of United States patent applications, patents, and file histories,
`
`including the asserted patent and its file history, may be offered and received into evidence in lieu
`
`of certified copies thereof, subject to all other objections which might be made to the admissibility
`
`of certified copies. The parties may use electronic versions of exhibits. A party may replace poor
`
`print or digital quality copies of exhibits with improved or higher resolution print or digital quality
`
`copies.
`
`The parties agree that any exhibit listed on a party’s own exhibit list as to which no
`
`objection remains pending at the time of opening statements may be shown to the jury by that party
`
`during opening statements if the exhibit will be the subject of testimony and explained to the jury
`
`by a witness at trial.
`
`The parties stipulate to the authenticity of each document listed in the Exhibit Lists that on
`
`its face appears to have been generated by one of the parties to the case or the recipient of a
`
`subpoena in the case (other than handwritten documents or documents containing handwritten
`
`notes or marginalia), subject to the caveat that a party may object to the admissibility of any
`
`specific statement in a document to the extent it can show that such statement does not fall within
`
`Fed. R. Evid. 803(6) or should otherwise not be admitted (e.g., pursuant to Fed. R. Evid. 402 or
`
`403 or other rules).
`
`None of the foregoing stipulations shall serve as a waiver of any other objections a party
`
`may have to any trial exhibits or abrogate the requirement that the party offering an exhibit into
`
`evidence satisfy any other rules governing the admissibility of evidence set forth in the Federal
`
`Rules of Evidence, the Federal Rules of Civil Procedure, this Court’s Local Rules, the Court’s
`
`
`
`16
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 17 of 22
`
`practices, or any other applicable rule or regulation. The parties agree to meet and confer in good
`
`faith to resolve objections to trial exhibits prior to their introduction at trial.
`
`The parties agree that the demonstratives that the parties intend to use at trial do not need
`
`to be included on their respective exhibit lists that are part of this Joint Final Pretrial Order.
`
`Plaintiff’s demonstratives will be identified with the prefix “PD,” starting with PD-1. Defendant’s
`
`demonstratives will be identified with the prefix “DD,” starting with DD-1.
`
`The parties further agree that, unless otherwise ordered by the Court, demonstrative
`
`exhibits will not be admitted as evidence and will not be made available to the jury during
`
`deliberations.
`
`The parties will exchange demonstratives to be used on direct examinations (whether live
`
`or by deposition), opening statements, and closing arguments by 9:00 p.m. CT the night before
`
`the session in which they will be used. Any objections to such demonstratives will be served by
`
`10:00 p.m. CT The parties will attempt to resolve objections through a meet and confer to begin
`
`on or before 11:00 p.m. CT on the day the objections are served. If good-faith efforts to resolve
`
`objections to demonstratives fail, the objecting party shall bring its objections to the Court’s
`
`attention no later than the morning of the day the demonstratives will be used, before trial begins
`
`or resumes. Demonstratives to be used during the examination of a witness called by the other
`
`party, demonstratives created during an examination of a witness, and demonstratives used solely
`
`for impeachments, need not be disclosed under this provision.
`
`Demonstratives exchanged will not be used by an opposing party prior to being used by
`
`the disclosing party. Any demonstrative that has been disclosed and shown to the jury may be used
`
`again without requiring further disclosure.
`
`
`
`17
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 18 of 22
`
`This provision does not apply to demonstrative exhibits created during testimony and
`
`demonstrative exhibits to be used for cross examination, adverse direct examination, or redirect
`
`examination, which need not be provided to the other side in advance of their use. In addition,
`
`enlargements, highlighting, ballooning, or other annotations of exhibits or parts of exhibits or trial
`
`testimony are not required to be provided to the other side in advance of their use.
`
`For closing arguments, the parties agree that a party need not provide advance notice
`
`regarding its intent to use demonstratives previously used during the course of trial or
`
`enlargements, highlighting, ballooning, or other annotations of admitted trial exhibits or trial
`
`testimony.
`
`D. Witnesses
`
`Each party shall identify all witnesses it expects to call live or by deposition during the trial
`
`in the order in which it expects to call them no later than 7:00 p.m. CT two days before such
`
`witness will be called live or by deposition. Such notice shall indicate the intended order of call of
`
`live and deposition witnesses. All disclosures identified pursuant to this procedure are final unless
`
`unexpected circumstances necessitate a change in the order of witness and/or unless the party elects
`
`not to call a witness such party previously intended in good faith to call.
`
`For witnesses to be called by deposition, the designation set forth above shall designate
`
`the specific pages and lines of transcript, along with estimated run-times for video, from the
`
`witness’s deposition that it proposes to read or play during trial. The receiving party shall provide
`
`objections and identify, in page and line format along with estimated run-times for video, counter-
`
`designations to such witnesses by 7:00 p.m. CT the following day. The offering party shall then
`
`identify any objections it intends to assert to the counter designations by 9:00 p.m. CT that day.
`
`The parties shall then meet and confer by 10:00 p.m. CT that evening regarding all objections. To
`
`the extent deposition objections are not resolved at the meet and confer, the objecting party will
`18
`
`
`
`

`

`Case 6:20-cv-00665-ADA Document 280 Filed 07/07/22 Page 19 of 22
`
`raise the objections with the Court no later than the morning of the day the witness is to be called,
`
`before trial begins, or