Case 3:14-cv-00757-REP-DJN Document 851 Filed 04/13/16 Page 1 of 9 PageID# 43189
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`RICHMOND DIVISION
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`Civil Action No. 3:14-cv-757-REP
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`SAMSUNG ELECTRONICS CO., LTD.,
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`Plaintiff,
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`-v.-
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`NVIDIA CORPORATION,
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`Defendant.
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`NVIDIA’S MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE TO
`PRECLUDE SAMSUNG FROM INTRODUCING EVIDENCE OR PRESENTING
`ARGUMENT RELATED TO ANY INVALIDITY CONTENTIONS OR PRIOR ART
`REFERENCES THAT WILL NOT BE PURSUED AT TRIAL
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`Case 3:14-cv-00757-REP-DJN Document 851 Filed 04/13/16 Page 2 of 9 PageID# 43190
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`I.
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`INTRODUCTION
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`Defendant NVIDIA Corporation (“NVIDIA”) respectfully moves the Court in limine to
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`preclude Plaintiff Samsung Electronics Co., Ltd. (“Samsung”) from introducing evidence or
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`presenting argument related to any invalidity contentions or prior art references that will not be
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`pursued at trial
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`At Samsung’s request, the Court ordered NVIDIA in February 2016 to narrow its prior
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`art references to those “it expects to rely on at trial in support of its invalidity defenses.” (Dkt.
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`No. 821 at 3.) Samsung should not be permitted now to present evidence or argument related to
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`those dropped prior art references or invalidity contentions. Arguments concerning withdrawn
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`prior art references and contentions are not relevant to the remaining issues in the case. Even if
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`marginally relevant, such arguments unfairly imply that because NVIDIA has withdrawn some
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`prior art references and invalidity contentions, the jury should be skeptical of the arguments
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`NVIDIA will present at trial. As such, whatever minimal probative value these arguments would
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`have would be substantially outweighed by their prejudice to NVIDIA. Accordingly, any such
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`evidence and argument should be precluded under Federal Rules of Evidence 402 and 403. The
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`introduction of such evidence is nothing more than an invitation for the jury to deliberate and
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`reach decisions on issues other than the merits of evidence and argument actually presented at
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`trial.
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`The Court has already ordered that the parties are precluded from presenting evidence or
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`argument related to dropped claims, patents, and parties. (Dkt. No. 504.) Samsung similarly
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`should not be permitted to present evidence or argument related to dropped prior art references
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`or invalidity contentions.
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`1
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`II.
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`RELEVANT FACTUAL BACKGROUND
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`NVIDIA served its initial invalidity contentions on May 8, 2015, and narrowed their
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`scope on May 27, 2015 and August 7, 2015. (See Dkt. No. 202 at 2-3.) On January 19, 2016,
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`the Court instructed NVIDIA to identify the invalidity contentions it intended to pursue at trial.
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`(See Ex. A, Jan. 19, 2016 Tr. at 101:17-22 (“I would like to have from you in the most truncated
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`of forms on each patent what are the invalidity contentions for that patent.”) On January 21,
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`2016, pursuant to the Court’s request and in an effort to narrow the issues for trial, NVIDIA
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`submitted its invalidity contentions, which identified six prior art references for each patent that
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`“may be pursued at trial.” (Dkt. No. 714 at 1-2.)
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`During a February 8, 2016 teleconference, Samsung urged the Court to require NVIDIA
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`further narrow the scope of prior art, ostensibly so that it could prepare its case for trial:
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`MR. SNYDER: It would certainly aid in the preparation for all the pretrial
`proceedings if that narrowing occurred sooner rather than later. … Could that
`be done on the 20th along with the pretrial submissions?
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`(Dkt. No. 804, Feb. 8, 2016 Tr. at 5:23-25, 7:2-3.1) Counsel for NVIDIA agreed to that
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`schedule. (Id. at 5:19-22; 6:4-7; 7:4.)
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`III. ARGUMENT
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`A.
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`Evidence of Withdrawn Prior Art References or Invalidity Contentions is
`Irrelevant
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`Evidence or argument related to prior art references or invalidity contentions that
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`NVIDIA will not pursue at trial should be precluded under Rule 402 because it is not relevant to
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`any issue in this case. Rule 402 provides: “Irrelevant evidence is not admissible.” Evidence is
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`only relevant “if (a) it has any tendency to make a fact more or less probable than it would be
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`1 All emphasis added.
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`without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
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`Evid. 401.
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`Evidence or argument relating to a withdrawn invalidity contention is not relevant to any
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`question before the jury in the invalidity phase of this case. All that is relevant is whether the
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`’902 patent or ’675 patent is valid in light of the prior art references that will be presented at
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`trial. In Multimedia Patent Trust v. Apple Inc., the court excluded “any evidence and argument
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`related to undisclosed/stricken prior art references,” concluding that such evidence or argument
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`was irrelevant because defendants could not rely on the undisclosed/stricken prior art references
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`at trial. No. 1-cv-2618, 2012 U.S. Dist. LEXIS 191199, at *12-14 (S.D. Cal. Nov. 20, 2012).
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`The same is true here. Pursuant to the Court’s request and to narrow the issues for trial, NVIDIA
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`has withdrawn certain invalidity contentions and, consequently, NVIDIA cannot rely on them at
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`trial. As in Multimedia Patent Trust, such evidence is irrelevant and should be precluded.
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`Samsung has recognized that evidence withdrawn before trial is not relevant to any issue
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`at trial and should therefore be precluded. For example, in its Motion in Limine No. 1, Samsung
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`argued that “Any claims, patents, or parties that have been removed from the case are no longer
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`relevant to any jury issues remaining in this litigation, and all references to them should be
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`excluded as irrelevant.” (Dkt. No. 309 at 3.) Samsung’s arguments in favor of its Motion in
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`Limine No. 1 apply with equal force here.
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`B.
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`Evidence of Withdrawn Prior Art References or Invalidity Contentions is
`Unfairly Prejudicial and Will Mislead the Jury
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`Any evidence or argument of withdrawn invalidity contentions should also be precluded
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`under Rule 403. Rule 403 provides that even relevant evidence may be excluded “if its probative
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`value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
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`confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
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`cumulative evidence.” “A district court has broad discretion under Rule 403 to exclude
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`prejudicial evidence.” Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994.)
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`Evidence or argument of withdrawn invalidity contentions would cause unfair prejudice
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`and mislead the jury. First, any mention of withdrawn invalidity contentions would be highly
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`prejudicial to NVIDIA’s invalidity defense. For example, Samsung may reference such
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`withdrawn contentions to improperly suggest that NVIDIA raised many invalidity issues during
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`the case and that its current invalidity case is all that is left of a “kitchen sink” approach.
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`Second, the jury may be misled into reaching decisions based on considerations other than the
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`issues and arguments presented at trial. For example, evidence of withdrawn contentions may
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`lead the jury to believe that NVIDIA was wrong about its prior contentions, and that the
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`invalidity contentions it will present at trial (the only relevant invalidity contentions) therefore
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`lack merit. But NVIDIA has narrowed its invalidity case per the Court’s order, not due to lack of
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`merit of any of its arguments. The Court should not allow the jury to speculate about the
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`strength of unpresented evidence or NVIDIA’s motives for withdrawing its prior contentions.
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`See Paltak Holdings, Inc. v. Microsoft Corp., No. 2:06-cv-367, Dkt. No. 226 at 4 (E.D. Tex. Feb.
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`25, 2009) (Ex. B) (finding evidence or argument of dropped claims, causes of action, or other
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`forms of relief to be “highly prejudicial” because “the jury is ill-equipped to determine whether
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`[plaintiff’s] abandonment of previous claims occurred for purely strategic reasons or occurred
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`because [the defendant] possessed legitimate defenses”).
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`During meet and confer, Samsung generally agreed with the relief requested by this
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`motion in limine, but sought to preserve the ability to cross-examine an expert about prior
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`opinions regarding other prior art for purposes of challenging the expert’s credibility. But such
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`prior testimony about other prior art references is not relevant to an expert’s opinions regarding
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`the prior art pursued at trial and would only serve to confuse the jury.
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`Samsung’s actions at trial confirm that cross-examination of an expert regarding prior,
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`allegedly inconsistent opinions is not relevant and would create prejudice and jury confusion. At
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`the January trial, Samsung’s damages expert Ms. Lawton opined that the appropriate damages
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`for the ’602 patent was $4 million. During Ms. Lawton’s cross-examination, NVIDIA sought to
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`introduce evidence that Ms. Lawton previously opined that the damages for the ’602 patent was
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`$3 million, and that her damages analysis was thus inconsistent the ’602 patent. Samsung
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`objected that this proposed line of questioning was not relevant to the opinions that Ms. Lawton
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`was currently presenting at trial, and the Court agreed, holding that any marginal relevance was
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`outweighed by the resulting prejudice and jury confusion:
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`THE COURT: I don't think it's relevant that she had a different figure based on
`entirely different products, and I think to the extent it may have some marginal
`relevance, it would be very confusing, because the plaintiff would then have an
`opportunity to go back and raise all that issue and questioning that's on redirect,
`and the jury would get helplessly confused, so the objection is sustained.
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`(Feb. 1, 2016 Tr. at 1074:2-1075:25.)
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`The same result follows here. To the extent Samsung contends that an expert’s previous
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`invalidity contentions opinion regarding other prior art not presented at trial is somehow
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`inconsistent with an expert’s opinion presented at trial, any marginal relevance of those previous
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`opinions (there is none) is outweighed by the resulting prejudice to NVIDIA to raise all of those
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`issues on redirect to counter Samsung’s inference, as well as resulting jury confusion of having
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`to hear protracted evidence regarding prior art not entered into evidence.
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`Samsung and this Court have previously recognized the highly prejudicial nature of this
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`type of evidence. In its Motion in Limine No. 1, Samsung argued that “Evidence related to
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`claims no longer in this litigation will confuse the jury and cause unfair prejudice.” (Dkt. No.
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`309 at 1.) The Court agreed with Samsung, and recognized that:
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`the tacitly admitted purpose of the proffered evidence of dropped claims, patents
`and parties is principally to invite the jury to decide the case on issues other than
`the merits; and finding that, on balance any marginal relevance is substantially
`outweighed by danger of unfair prejudice, confusing the issues, misleading the
`jury, undue delay and wasting time.
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`(Dkt. No. 504 at 2.) The same is true here. There is no legitimate reason to reference any
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`withdrawn invalidity contentions or prior art references not presented at trial. Any such evidence
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`or argument will only mislead the jury and cause unfair prejudice. Accordingly, the Court
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`should preclude any evidence or argument of withdrawn invalidity contentions under Rule 403.
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`IV. CONCLUSION
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`For the reasons set forth above, the Court should grant this motion in limine precluding
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`Samsung from introducing evidence or presenting argument related to any invalidity contentions
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`or prior art references that will not be pursued at trial.
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`Dated: April 13, 2016
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`Respectfully submitted,
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`By: /s/ Robert A. Angle
`Robert A. Angle, VSB No. 37691
`robert.angle@troutmansanders.com
`TROUTMAN SANDERS LLP
`1001 Haxall Point
`Richmond, VA 23219
`Tel: (804) 697-1200
`Fax: (804) 697-1339
`
`Maximilian A. Grant (admitted pro hac vice)
`max.grant@lw.com
`Gabriel K. Bell (admitted pro hac vice)
`gabriel.bell@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`Clement J. Naples (admitted pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
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`Ron E. Shulman (admitted pro hac vice)
`ron.shulman@lw.com
`Richard G. Frenkel (admitted pro hac vice)
`rick.frenkel@lw.com
`Lisa K. Nguyen (admitted pro hac vice)
`lisa.nguyen@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`Tel: (650) 328-4600; Fax: (650) 463-2600
`
`Julie M. Holloway (admitted pro hac vice)
`julie.holloway@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
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`Ann Marie T. Wahls (admitted pro hac vice)
`annmarie.wahls@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, Illinois 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for NVIDIA Corp.
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`Case 3:14-cv-00757-REP-DJN Document 851 Filed 04/13/16 Page 9 of 9 PageID# 43197
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 13th day of April, 2016, I will electronically file the
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`foregoing with the Clerk of the Court using the CM/ECF system, which will then send a
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`notification of such filing (NEF) to the following:
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`Robert W. McFarland
`rmcfarland@mcguirewoods.com
`McGuire Woods LLP
`101 W. Main Street, Suite 9000
`Norfolk, VA 23510
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`Brian C. Riopelle
`briopelle@mcguirewoods.com
`McGuire Woods LLP
`Gateway Plaza
`800 East Canal Street
`Richmond, VA 23219
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`Counsel for Samsung Electronics Co., Ltd.
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`Darin W. Snyder
`dsnyder@omm.com
`Alexander B. Parker
`aparker@omm.com
`Elysa Q. Wan
`ewan@omm.com
`O’Melveny & Myers LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
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`Vision L. Winter
`vwinter@omm.com
`Ryan K. Yagura
`ryagura@omm.com
`Michael A. Koplow
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
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`Mishima Alam
`malam@omm.com
`O’Melveny & Myers LLP
`1625 Eye Street NW
`Washington, DC 20006
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`Robert A. Angle
`/s/
`Robert A. Angle (VSB No. 37691)
`robert.angle@troutmansanders.com
`TROUTMAN SANDERS LLP
`1001 Haxall Point
`Richmond, VA 23219
`T: (804) 697-1200
`F: (804) 697-1339
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