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AIR TURBINE TECHNOLOGY v. ATLAS COPCO AB
ORDER REGARDING CLAIM FOR BREACH OF CONFIDENTIAL RELATIONSHIP ORDER DENYING PLAINTIFFS MOTION TO STRIKE NOTICES OF PRIOR ART ORDER DENYING VARIOUS MOTIONS AS MOOT
KENNETH MARRA, District Judge
THIS CAUSE is before the Court upon the issues raised during the pretrial conference, Defendants' Motion in Limine #9 [sealed at DE 384] regarding the scope of Plaintiff's claim for breach of confidential relationship, Plaintiffs 9/30/03 Letter to the Court responding to the Court's request for clarification of disclosed confidential information, Defendants' Response to the Letter [DE 455], Plaintiffs Response to Defendants' Response [sealed at DE 459], Defendants' Reply to Plaintiffs Response [DE 460], Plaintiffs Motion to Strike Notice of Prior Art [DE 398] and a review of the record. The Court has carefully considered the motions, responses, and replies thereto, and having heard the argument of counsel at the pretrial conference, is otherwise fully advised in the premises.
Upon review of all the above, the Court concludes that Plaintiff did sufficiently disclose information other than the TSF 07 Factmaster that allegedly was used by Defendants and allegedly violated a duty of confidentiality. Thus, Plaintiff may seek to introduce those items of evidence listed in Exhibits A and B of its 9/30/03 Letter to the Court.
This order should not be construed as a ruling that any of this evidence is, in fact, admissible. Defendants may raise any preserved legal objections at the time the evidence is offered into evidence. Additionally, to the extent Defendants argue the merits of their defense that advertising material made public by Plaintiff cannot form the basis of a claim for breach of confidential relationship, the issue of whether the materials were publicly available is one of fact for the jury.
Turning next to Plaintiffs Motion to Strike Notices of Prior Art, the Court does not find any statutory or case law authority requiring Defendants to specify in its notice of prior art how each listed patent is expected to be used at trial. Since the Notice otherwise complies with the requirements of 35 U.S.C. § 282, the Court will deny Plaintiffs Motion.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants' Motion in Limine #9 [sealed at DE 384] is hereby GRANTED in that in presenting its case on its claim for breach of confidential relationship, Plaintiff shall be limited to evidence disclosed during discovery, whether in the form of answers to interrogatories, responses to document production requests or requests for admissions, or depositions, including those items listed in Exhibits A and B of Plaintiff's 9/30/03 Letter to the court [filed with the Clerk by the Court], without prejudice to Defendants objecting to any evidence not disclosed during discovery;
2. Plaintiffs Motion to Strike Notice of Prior Art [DE 398] is hereby DENIED;
3. Plaintiffs Motion for Leave to Serve Expert Report of Aron Levko [DE 197-1] or to Extend Time to Serve Mr. Levko's Expert Report [DE 197-2] is hereby DENIED as moot, as Mr. Levko will no longer be testifying in this case given the Court's rulings on summary judgment;
4. Defendants' Motion for Leave to File a Sur-Reply [DE 214] regarding Aron Levko motion is hereby DENIED as moot;
5. Plaintiffs Motion for Expedited Briefing Schedule [DE 319-2] is DENIED as moot;
6. The pending motions to seal [DE 349, 377, 392, 394, 436, and 437] are hereby GRANTED;
7. Defendants' Motions in limine [DE 369 and DE 372] are hereby DENIED as moot, given the Court's rulings on summary judgment;
8. The parties' Motions to Allow More than Two Attorneys to Argue at Trial [DE's 368 and 408] are hereby GRANTED, in that more than two attorneys per side may participate in the trial, although only one attorney per side may question or cross-examine a particular witness.DONE AND ORDERED
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