Case: 3:15-cv-00292-jdp Document #: 472 Filed: 06/07/17 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`OXBO INTERNATIONAL CORPORATION,
`
`
`Plaintiff,
`
`v.
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`H&S MANUFACTURING COMPANY, INC.,
`
`
`Defendant.
`
`FINAL PRETRIAL
`CONFERENCE ORDER
`
`15-cv-292-jdp
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`The court held a final pretrial conference on Wednesday, May 31, 2017, before
`
`
`
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`
`
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`United States District Judge James D. Peterson. Plaintiff Oxbo International Corporation
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`appeared by counsel, Shane Brunner, Jeffrey Ward, Thomas Johnson, Stephen Howe, and
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`Emily Wessels. Defendant H&S Manufacturing Company, Inc., appeared by counsel, Eric
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`Chadwick, Aaron Davis, and Adam Szymanski.
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`GENERAL PRETRIAL INSTRUCTIONS
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`Counsel predicted that the case would take 5-10 days to try. The court will tell the
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`jury 10. The jury will consist of 8 jurors to be selected from a qualified panel of 14. Each side
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`will exercise three peremptory challenges against the panel. Trial days will begin at 9:00 a.m.
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`and will run until 5:30 p.m., with at least an hour for lunch, a short break in the morning,
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`and another in the afternoon. Counsel may be required to be in court earlier than 9:00 a.m.
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`to address matters without the presence of the jury. On the first day of trial, counsel are
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`directed to appear at 8:30 a.m.
`
`Witnesses, with the exception of experts and corporate representatives, will be
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`sequestered.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
`
`OXBO INTERNATIONAL CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`
`H&S MANUFACTURING COMPANY, INC.,
`
`
`Defendant.
`
`FINAL PRETRIAL
`CONFERENCE ORDER
`
`15-cv-292-jdp
`
`The court held a final pretrial conference on Wednesday, May 31, 2017, before
`
`
`
`
`
`
`
`United States District Judge James D. Peterson. Plaintiff Oxbo International Corporation
`
`appeared by counsel, Shane Brunner, Jeffrey Ward, Thomas Johnson, Stephen Howe, and
`
`Emily Wessels. Defendant H&S Manufacturing Company, Inc., appeared by counsel, Eric
`
`Chadwick, Aaron Davis, and Adam Szymanski.
`
`GENERAL PRETRIAL INSTRUCTIONS
`
`Counsel predicted that the case would take 5-10 days to try. The court will tell the
`
`jury 10. The jury will consist of 8 jurors to be selected from a qualified panel of 14. Each side
`
`will exercise three peremptory challenges against the panel. Trial days will begin at 9:00 a.m.
`
`and will run until 5:30 p.m., with at least an hour for lunch, a short break in the morning,
`
`and another in the afternoon. Counsel may be required to be in court earlier than 9:00 a.m.
`
`to address matters without the presence of the jury. On the first day of trial, counsel are
`
`directed to appear at 8:30 a.m.
`
`Witnesses, with the exception of experts and corporate representatives, will be
`
`sequestered.
`
`
`
`Case: 3:15-cv-00292-jdp Document #: 472 Filed: 06/07/17 Page 15 of 24
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`that Seitz’s testimony will be relevant to the jury’s consideration of non-infringing
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`alternatives during the damages phase.
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`The court will allow Seitz to testify as a lay witness, to the extent he has relevant
`
`knowledge of hay rakes (including those made by Krone). But his testimony about non-
`
`infringing alternatives will come close to expert opinion, which he cannot offer because he
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`has not been disclosed as an expert. H&S has not shown why or how the Krone documents
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`would be admissible other than as support for an expert opinion about non-infringing
`
`alternatives. The motion is granted: the Krone documents are excluded.
`
`10.To exclude certain references from being used as prior art against Oxbo’s
`originally asserted claims
`
`Oxbo asks the court to preclude H&S from arguing that claim 44 of the ’929 patent,
`
`claim 1 of the ’739 patent, claims 1 and 3-11 of the ’488 patent, and claims 1, 4, 6, and 8 of
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`the ’052 patent are invalid based on CA Honey, van der Lely, Declementi, Lohrentz, US
`
`Honey, Pourchet, or any other undisclosed references, and from arguing that claim 1 of the
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`’739 patent is invalid over the combination of Dow ’757 in view of Zhavoronkin. The motion
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`is based on an agreement the parties reached during discovery.
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`H&S agrees to the foregoing, with one exception. It contends that it properly
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`disclosed its contention that claim 1 of the ’739 patent is invalid over Dow ’757 in view of
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`Zhavoronkin, and, as a result, that combination is fair game at trial.
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`In June 2016, H&S agreed that it would not assert any references that it did not
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`disclose in its January 8 and March 24, 2016 invalidity contentions against Oxbo’s originally
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`asserted claims. See Dkt. 376-33 (“H&S has agreed that the only references it may use
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`against the originally asserted claims is that which was disclosed in its original and
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`Case: 3:15-cv-00292-jdp Document #: 472 Filed: 06/07/17 Page 16 of 24
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`supplemental invalidity contentions, served January 8, 2016 and March 24, 2016
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`respectively. To the extent H&S’s expert reports cite additional references, H&S has agreed it
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`will not use such references against the originally asserted claims in this litigation.”). The
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`issue here is whether H&S disclosed the Dow/Zhavoronkin combination in either its January
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`8 or March 24 contentions.
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`Both disclosures identify the Zhavoronkin reference and the Dow reference. See
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`Dkt. 376-26, at 13-15 and Dkt. 376-22, at 11. The January disclosure contends that claim 1
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`of the ’739 patent is invalid over “one or more of the following patents individually or in
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`combination,” and it includes the Zhavoronkin reference and the Dow reference in the list
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`that follows. Dkt. 376-26, at 18. The March disclosure identifies specific prior art
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`combinations—contending that claim 1 of the ’739 patent is invalid over Schnittjer in view
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`of Zhavoronkin, for example—but it never contends that claim 1 of the ’739 patent is invalid
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`over Dow in view of Zhavoronkin. Dkt. 376-22, at 13-14.
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`H&S’s disclosure was not specific enough to put Oxbo on notice of the particular
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`invalidity ground that H&S was asserting. Accordingly, the motion is granted in full.
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`11.To exclude reference to John Orr and Orrson Custom Farming
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`The motion is granted as unopposed.
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`12.To exclude evidence regarding an alleged hypothetical acceptable non-
`infringing alternative
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`This motion identifies two problems for H&S. First, H&S did not identify its
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`WMCH30 merger as an acceptable non-infringing alternative in response to an Oxbo
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`contention interrogatory. H&S disclosed “H&S Twin Mergers of all sorts” and “H&S Front
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`Mount Mergers.” Dkt. 376-1, at 9. Cordray refers to the WMCH30 as a twin merger. But
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`16
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`Case: 3:15-cv-00292-jdp Document #: 472 Filed: 06/07/17 Page 23 of 24
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`IT IS ORDERED that:
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`ORDER
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`1. Plaintiff Oxbo International Corporation’s motion for sanctions, Dkt. 260, is
`GRANTED in part and DENIED in part.
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`2. Defendant H&S Manufacturing Company, Inc.’s motion in limine no. 1,
`Dkt. 346, is GRANTED.
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`3. Defendant’s motion in limine no. 2, Dkt. 347, is GRANTED.
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`4. Defendant’s motion in limine no. 3, Dkt. 348, is DENIED.
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`5. Defendant’s motion in limine no. 4, Dkt. 349, is GRANTED.
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`6. Defendant’s motion in limine no. 5, Dkt. 350, is GRANTED, subject to the terms
`discussed herein.
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`7. Defendant’s motion in limine no. 6, Dkt. 352, is DENIED, as discussed above.
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`8. Defendant’s motion in limine no. 7, Dkt. 353, is GRANTED.
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`9. Defendant’s motion in limine no. 8, Dkt. 354, is GRANTED
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`10. Defendant’s motion in limine no. 9, Dkt. 355, is GRANTED.
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`11. Plaintiff’s motions in limine, Dkt. 359, are GRANTED and DENIED as set forth
`herein.
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`secondary
`regarding
`testimony
`to exclude expert
`12. Defendant’s motion
`considerations of nonobviousness, Dkt. 334, is GRANTED in part and DENIED
`in part.
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`13. Defendant’s motion to exclude expert testimony regarding damages, Dkt. 336, is
`DENIED.
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`14. Defendant’s motion for judicial notice, Dkt. 343, is DENIED as moot.
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`Case: 3:15-cv-00292-jdp Document #: 472 Filed: 06/07/17 Page 24 of 24
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`15. Defendant’s motion to submit to jury, Dkt. 380, is DENIED.
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`Entered June 7, 2017.
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`BY THE COURT:
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`/s/
`________________________________________
`JAMES D. PETERSON
`District Judge
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`24
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