Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 1 of 9 PageID# 22624
`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 1 of 9 PagelD# 22624
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`EXHIBIT 8
`EXHIBIT 8
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 1 of 9 PagelD# 22624
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`EXHIBIT 8
`EXHIBIT 8
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`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 2 of 9 PageID# 22625
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`CloudofChange, LLC,
` Plaintiff
`
`v.
`
`NCR Corporation,
` Defendant
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
`
`
`CIVIL NO. 6:19-CV-00513-ADA
`
`
`
`
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`ORDER ON PRETRIAL MOTIONS AND MOTIONS IN LIMINE
`
`The Court held a three-part pretrial conference for the above-captioned action on April
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`29, 2021, May 5, 2021, and May 11, 2021 regarding pending pretrial motions (ECF Nos. 64, 66,
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`68, 70, 89, and 97) and motions in limine (ECF Nos. 91, 95, and 96) filed by Plaintiff
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`CloudofChange, LLC (“CoC”) and Defendant NCR Corporation (“NCR”) (collectively, the
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`“Parties”). ECF Nos. 64, 66, 68, 70, 89, 91, 95, 96, and 97. This Order memorializes the Court’s
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`rulings on the aforementioned pretrial motions and motions in limine as announced into the
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`record, including additional instructions that were given to the Parties. While this Order
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`summarizes the Court’s rulings as announced into the record during the pretrial hearing, this
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`Order in no way limits or constrains such rulings from the bench. Accordingly, it is hereby
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`ORDERED as follows:
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`
`
`
`
`1
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`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 3 of 9 PageID# 22626
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`A.
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`NCR’s Motion for Summary Judgment of Noninfringement (ECF No. 64)
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`I. PRETRIAL MOTIONS
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`DENIED.
`
`B.
`
`NCR’s Motion for Summary Judgment of Invalidity (ECF No. 66)
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`DENIED.
`
`C.
`
`NCR’s Motion to Exclude the Opinions and Testimony of Mr. Gregory C.
`Crouse (ECF No. 68)
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`GRANTED-IN-PART and DENIED-IN-PART.
`
`NCR’s motion is GRANTED with respect to Mr. Crouse’s apportionment analysis,
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`MOOTED as to his conveyed sales analysis, and DENIED as to the remainder.
`
`D.
`
`CoC’s Motion to Exclude the Opinions and Testimony of Sandeep Chatterjee
`(ECF No. 70)
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`DENIED.
`
`E.
`
`CoC’s Daubert Motion to Exclude the Damages Opinions and Testimony of
`Dr. Devrim Ikizler (ECF No. 89)
`
`GRANTED-IN-PART and DENIED-IN-PART.
`
`CoC’s motion is GRANTED with respect to Dr. Ikizler’s market value approach and
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`patent-based apportionment approach, and is DENIED as to the design around approach and the
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`feature-based apportionment approach.
`
`F.
`
`NCR’s Motion to Exclude the Opinions and Testimony of Ambreen Salters
`(ECF No. 97)
`
`DENIED. However, Ms. Salters shall not rely on any part of Mr. Crouse’s opinions that
`
`have been excluded by the Court.
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`
`
`
`
`2
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`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 4 of 9 PageID# 22627
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`II. MOTIONS IN LIMINE
`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:
`
`A.
`
`1.
`
`Plaintiff CoC’s Motions in Limine (ECF No. 91)
`
`Plaintiff’s MIL 1:
`Troll
`
`References to CoC as a Non-Practicing Entity and Patent
`
`GRANTED. The Court will not allow describing CoC as a “patent troll.” However, NCR
`
`may characterize CoC as a non-practicing entity if there is a legitimate reason to do so.
`
`2.
`
`Disparaging Remarks or Arguments Implying that It Is
`Plaintiff’s MIL 2:
`Improper to Assert Patents Without Practicing Them
`
`GRANTED.
`
`3.
`
`Plaintiff’s MIL 3:
`
`References to Prior Litigations Involving CoC Witnesses
`
` GRANTED.
`
`4.
`
`Plaintiff’s MIL 4:
`than NCR
`
`GRANTED.
`
`References to Notice Letters Sent to Third Parties Other
`
`5.
`
`Plaintiff’s MIL 5:
`References to Any Prior Art and Any Theory of Invalidity
`Not Set Forth in NCR’s Final Invalidity Contentions as Narrowed
`
`GRANTED.
`
`6.
`
`Plaintiff’s MIL 6:
`
`Comparison of the Accused Products to Prior Art
`
`GRANTED.
`
`7.
`
`References to Forum Shopping, Litigation Abuse, or the
`Plaintiff’s MIL 7:
`Western District of Texas as a Popular Venue for Patent Litigation or as an
`Improper Venue
`
`3
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 5 of 9 PageID# 22628
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` GRANTED.
`
`8.
`
`Plaintiff’s MIL 8:
`
`References to NCR’s 414 Patents
`
`DENIED.
`
`9.
`
`References to the Summer Intern Weights Document and
`Plaintiff’s MIL 9:
`Any Analysis Contained Therein
`
`GRANTED.
`
`10.
`
`Plaintiff’s MIL 10: References to Allegations that Individual Claim Elements
`Were in the Prior Art
`
`GRANTED.
`
`11.
`
`Plaintiff’s MIL 11: Disparaging References to the PTO and its Examiners
`
`GRANTED.
`
`12.
`
`Plaintiff’s MIL 12: References to Evidence or Argument that Is Inconsistent
`with the Court's Claim Constructions
`
` GRANTED.
`
`13.
`
`Plaintiff’s MIL 13: References to Chatterjee’s Untimely Opinions
`
` GRANTED.
`
`14.
`
`Plaintiff’s MIL 14: References to CoC’s Attorney Fee Agreements
`
`GRANTED.
`
`B.
`
`1.
`
`Defendant NCR’s First Set of Motions in Limine (ECF No. 95)
`
`Defendant’s MIL 1: No Argument, Evidence, or Questions Concerning
`Presence or Absence of Party’s Employees/Executives, e.g., Absent Witnesses or
`Top Executives
`
` GRANTED.
`
`4
`
`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 6 of 9 PageID# 22629
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`2.
`
`Defendant’s MIL 2: No Argument, Evidence, or Questions Concerning Any
`Allegation NCR Does Not Respect Intellectual Property Generally
`
` GRANTED.
`
`3.
`
`Defendant’s MIL 3: No Argument, Evidence, or Questions Concerning Any
`Allegation that NCR Copied CoC’s Patented Inventions
`
` GRANTED.
`
`4.
`
`Defendant’s MIL 4: No Argument, Evidence, or Questions as to Comparisons
`of Burden of Proof Standards to Other Areas of the Law
`
` GRANTED.
`
`5.
`
`Defendant’s MIL 5: No Argument, Evidence, or Questions Concerning NCR’s
`Overall Economic Status, Total Revenue/Profits, Revenue /Profits Not Connected
`to Accused Systems, Total Company Cash, or Ability to Pay for a License
`
` GRANTED.
`
`6.
`
`Defendant’s MIL 6: No Argument, Evidence, or Questions Regarding the
`Parties’ Relative Size, Financial Position, or Sophistication
`
` GRANTED.
`
`7.
`
`Defendant’s MIL 7: No Argument, Evidence, or Questions Suggesting a Party’s
`Corporate Representative at Trial Is Obligated to Prepare on Any Particular Topic
`or Is Charged with the Knowledge of Others within the Company
`
` GRANTED.
`
`8.
`
`Defendant’s MIL 8: No Extraneous Statement During Closing That Is Unrelated
`to The Evidence Presented or A Disputed Issue That Is Designed Primarily to
`Illicit an Emotional Juror Response
`
` GRANTED.
`
`9.
`
`Defendant’s MIL 9: Any Testimony Not Provided in Deposition Due to A
`Claim of Attorney Client or Work Product Privilege
`
`5
`
`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 7 of 9 PageID# 22630
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` GRANTED.
`
`10.
`
`Defendant’s MIL 10: Any Corporate Testimony That CoC Objected to Providing,
`Refused to Provide, Or Could Not Provide During Deposition
`
` GRANTED.
`
`C.
`
`1.
`
`Defendant NCR’s Second Set of Motions in Limine (ECF No. 96)
`
`Defendant’s MIL 1: Any Expert Opinions Not Contained in The Expert’s
`Respective Expert Report(s)
`
` GRANTED.
`
`2.
`
`Defendant’s MIL 2: No Expert Witness Testimony from Individuals Other Than
`Those Expert Witnesses Who Have Been Properly Designated and Admitted as
`Such at Trial
`
` GRANTED.
`
`3.
`
`Defendant’s MIL 3: No Argument, Evidence or Questions to issues to be
`decided by the Court, such as injunction/post-trial damages, exceptional
`case/enhanced damages, attorneys’ fees, or post and pre-trial interest
`
` GRANTED.
`
`4.
`
`Defendant’s MIL 4: No Argument, Evidence or Questions relating to any Court
`rulings on evidence or motions in limine. This motion in limine does not preclude
`a party from making objections based on the Court’s rulings on evidence or
`motions in limine
`
` GRANTED.
`
`5.
`
`Defendant’s MIL 5: No Argument, Evidence or Questions argument regarding
`the costs incurred in prosecution or defense of this lawsuit, except that expert
`witnesses may be questioned about compensation
`
` GRANTED.
`
`6.
`
`Defendant’s MIL 6: No Argument, Evidence or Questions relating to jury
`consultants, shadow juries, or focus groups before or during trial
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`6
`
`
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 8 of 9 PageID# 22631
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` GRANTED.
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`7.
`
`Defendant’s MIL 7: No Argument, Evidence or Questions that NCR had a duty
`to investigate the patents-in-suit or possible infringement
`
` DENIED.
`
`8.
`
`Defendant’s MIL 8: No Argument, Evidence or Question that NCR did or did
`not obtain and/or produce an opinion of counsel
`
` GRANTED.
`
`9.
`
`Defendant’s MIL 9: No Argument, Evidence or Question that relates to or
`invokes claim construction issues or otherwise undermines or collaterally attacks
`the Court’s claim constructions, including, for example, presenting arguments or
`opinions inconsistent with the Court’s claim constructions, but the parties may
`inform the jury of the definitions adopted by this Court
`
` GRANTED.
`
`10.
`
`Defendant’s MIL 10: No Argument, Evidence or Questions relating to any
`discovery disputes or alleged failure by any party to produce information during
`discovery, including any suggestion that the parties have not engaged in good
`faith discovery or reference to the assertion of objections or the assertion of
`privileges that occurred pre-trial or during discovery
`
` GRANTED.
`
`11.
`
`Defendant’s MIL11: No Argument, Evidence or Questions that Plaintiff Notified
`NCR of the ’012 Patent Prior to this Suit
`
`DENIED.
`
`12.
`
`Defendant’s MIL 12: No Argument, Evidence or Questions Regarding Indirect
`Infringement
`
` GRANTED.
`
`13.
`
`Defendant’s MIL 13: No Argument, Evidence or Questions regarding
`Doctrine of Equivalents
`
`the
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`7
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`Case 1:20-cv-00393-LO-TCB Document 836-8 Filed 01/21/22 Page 9 of 9 PageID# 22632
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` GRANTED.
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`14.
`
`Defendant’s MIL 14: No Argument, Evidence or Questions regarding, or
`otherwise referencing, any discussion among counsel or discussion before the
`Court during a bench conference or during any hearing outside the presence of the
`jury
`
` GRANTED.
`
`15.
`
`Defendant’s MIL 15: No Argument, Evidence or Questions by CoC related to a
`patent examiner being an expert in the field
`
` GRANTED.
`
`16.
`
`Defendant’s MIL 16: No Testimony from CoC’s Damages Expert Salters
`
` DENIED.
`
`17.
`
`Defendant’s MIL 17: No Testimony from CoC’s Technical Expert Crouse
`
`DENIED.
`
`18.
`
`Defendant’s MIL 18: No Argument, Evidence, or Questions That an Expert Has
`Consulted for or Worked with the Other Party or Its Employees
`
` DENIED.
`
`
`
`
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`SIGNED this 8th day of November, 2021.
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`
`
`
`
`
`
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`
`8
`
`
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