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13-784 - Thorne Research et al v. Atlantic Pro-Nutrients


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13-784 - Thorne Research et al v. Atlantic Pro-Nutrients
October 8, 2015
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MEMORANDUM DECISION and ORDER on Claim Construction granting in part and denying in part 54 Motion to Determine Markman Issues; granting in part and denying in part 55 Motion to Determine Markman Issues. Signed by Judge Ted Stewart on 10/8/2015. (blh)
November 9, 2015
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MEMORANDUM DECISION and ORDER granting 90 Motion for Clarification; denying 101 Motion for Reconsideration. Signed by Judge Ted Stewart on 11/9/2015. (blh)
February 29, 2016
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MEMORANDUM DECISION AND ORDER granting in part and denying in part 130 Plaintiffs Motion for Clarification. Signed by Judge Ted Stewart on 2/29/2016. (jds)
March 22, 2016
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MEMORANDUM DECISION granting 73 Motion to Compeldenying 110 Motion ; denying 123 Motion for Leave to File. Signed by Magistrate Judge Paul M. Warner on 03/22/16. (jlw)
May 9, 2016
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MEMORANDUM DECISION AND ORDER Overruling 142 and 143 Objections to Magistrate Judge's Order 139; and Ordering that motions for summary judgment on infringement and patent invalidity shall be filed by June 6, 2016. Signed by Judge Ted Stewart on 5/9/2016. (eat)
September 26, 2016
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MEMORANDUM DECISION AND ORDER Modifying Deadlines Under the Local Patent Rules and Granting Limited Expert Discovery. Signed by Judge Ted Stewart on 9/26/2016. (eat)
January 30, 2017
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MEMORANDUM DECISION re 192 Objection to Response - Declaration of Glenn Prestwich. It is therefore ORDERED that Plaintiffs Objection to the Declaration of Glenn D. Prestwich is SUSTAINED. Signed by Judge Ted Stewart on 1/30/17. (jlw)
January 30, 2017
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MEMORANDUM DECISION and order Sustaining 170 Xymogens Evidentiary Objections in Response to Plaintiffs Reply Memorandum. Signed by Judge Ted Stewart on 1/30/17. (jlw)
February 2, 2018
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MEMORANDUM DECISION denying 251 Motion to Amend Final Infringement Contentions. Signed by Judge Ted Stewart on 2/2/18. (jlw)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Without Prejudice Plaintiffs' 269 Motion in Limine to Exclude Legal Opinions by Expert Witness. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Plaintiffs' 270 Motion in Limine to Exclude Opinion Regarding Microsoft Access Database. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Granting Plaintiffs' 271 Motion in Limine to Exclude Differences Between ME Products and CF Products; granting in part and denying in part 281 Redacted MOTION in Limine and Memorandum in Support of Defendant's Motion in Limine No. 4 to Exclude Contentions Not Disclosed in Plaintiff's Final Infringement Contentions. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Without Prejudice 274 Motion in Limine to Exclude Any Evidence and/or Testimony Re Composition of the Accused Products Not Prefiously Produced. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Defendant's 276 Motion in Limine of Defendant's Motion in Limine No. 1 to Prohibit Plaintiffs from Seeking Monetary Damages, Including a Reasonable Royalty, at Trial. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Granting in Part and Denying in Part 277 Motion in Limine of Defendant's Motion in Limine No. 2 to Exclude Evidence Regarding Scott Bukow's Purported Offer to Purchase a License to the '888 Patent. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Plaintiffs' 272 Motion in Limine to Exclude Failure to List Co-Inventor as a Basis for Invalidity. Plaintiffs are instructed to submit a proposed final jury instruction on inventorship and respond to Defendants proposed jury instruction on inventorship (Docket No. 311-3) by 5:00 p.m. today. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Defendant's 278 Motion in Limine of Defendant's Motion in Limine No. 3 to Exclude Expert Testimony Regarding Dr. Paul Abato's Alleged Reliance on Eurofins Report. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Denying Plaintiffs' 268 Motion in Limine to Exclude Photos Not Disclosed in Discovery. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 9, 2018
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MEMORANDUM DECISION and Order Granting Plaintiffs' 273 Motion in Limine to Exclude Untimely Disclosed Witnesses. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
February 13, 2018
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MEMORANDUM DECISION granting 343 Motion to Designate Privileged Document: First, the Court finds that Defendant failed to take reasonable steps to prevent disclosure. Defendant asserts that the document was disclosed when choosing which exhibits to include on its exhibit list. Defendant states that one of its counsel, Mr. Fields, made a notation that Defendant should object to the introduction of this document should Plaintiffs attempt to introduce it. This resulted in counsels staff including this exhibit as a trial exhibit. Defendant argues that Mr. Fields did not realize that the document had already been returned and, thus, had reason to believe that Plaintiffs might attempt to introduce it at trial. The Court finds that this explanation fails to show that Defendant took reasonable steps to prevent disclosure. Defendant claims that counsel did not realize that Plaintiffs no longer had possession of the document. This claim, however, is belied by the record wherein Plaintiffs clearly stated that they had destroyed all copies of the document at Xymogens request.6 Indeed, the Court had to request Defendant produce the document for in camera review because Plaintiffs could not provide a copy with their motion.7 Thus, even a cursory review of the docket would have informed counsel that Plaintiffs did not have a copy of the document. Moreover, counsels belief that Plaintiffs may still have a copy of the document does not explain why Defendant listed the document on its exhibit list and produced the document a second time. Second, the Court finds that Defendant did not take reasonable steps to rectify its disclosure. Defendant disclosed the exhibit on January 19, 2018. It was not until February 11, 2018, that Defendant attempted to rectify its error. And this was only done after counsel for Plaintiffs pointed out that the document had been disclosed.8 A reasonably diligent attorney should have discovered the disclosure earlier. Third, the scope of discovery weighs in favor of waiver. This is not a situation where a party inadvertently disclosed privileged material while producing thousands of documents in discovery. Defendants specifically disclosed the document on its trial exhibit list and indicated that it would seek introduction of the document at trial. Fourth, the Court considers the extent of the disclosure. Plaintiffs indicate that counsel has relied on the document in preparing for depositions and has further prepared to use it for trial. These facts weigh in favor of finding that the privilege has been waived. Finally, the Court considers fairness. Key to the courts consideration of this factor is the relevancy of the documents.9 As stated in the Motion, the information contained in the document is relevant to at least two issues at trial. Thus, this factor too, favors a finding of waiver. Signed by Judge Ted Stewart on 2/13/18. (jlw)
February 14, 2018
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MEMORANDUM DECISION granting in part and denying in part 352 Motion to Modify Court's Proposed Curative Jury Instruction. Plaintiffs' Request for a Curative Instruction is granted. The court will provide the following instruction: In opening statements, counsel for Xymogen suggested to you that you were entitled to draw certain conclusions or inferences from the fact that Dr. William Judy, the co-inventor of the 888 patent, will testify by deposition, rather than in person. There are many legitimate reasons a party may not present a witness live testimony at trial. Under some circumstances, if a witness cannot be present to testify from the witness stand, the witness testimony may be presented, under oath, in the form of a deposition. Sometime before this trial, attorneys representing the parties in this case questioned this witness under oath. A court reporter was present and recorded the testimony. Some of the questions from the witnesses deposition will now be presented to you. This deposition testimony is entitled to the same consideration, and is to be judged by you as to credibility and weight and otherwise considered by you insofar as possible, in the same way as if the witness had been present, and had testified from the witness stand in court. You are instructed to disregard the comments made by counsel to the extent that those comments are in conflict with this instruction. Signed by Judge Ted Stewart on 2/14/18. (jlw)
February 20, 2018
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MEMORANDUM DECISION denying 370 Plaintiffs' Request for Additional Jury Instruction. Signed by Judge Ted Stewart on 2/20/18. (jlw)
February 28, 2018
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MEMORANDUM DECISION AND ORDER denying 368 Motion for Judgment as a Matter of Law and Preclusion of Argument Regarding Damages. Defendant made the Motion in writing at the conclusion of Plaintiffs' case-in-chief on February 19, 2018. See order for further details. Signed by Judge Ted Stewart on 2/28/18. (jlw)
May 29, 2018
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MEMORANDUM DECISION denying 396 Motion for Attorney Fees; denying 404 Motion for New Trial; denying 406 Motion for New Trial; denying 410 Motion for New Trial; granting 413 Motion to Alter Judgment; denying 415 Motion to Strike. The Judgment will be amended to state, "IT IS ORDERED AND ADJUDGED that Defendant's accused products are not infringing claims 1 and 5 of the '888 patent, and claims 1 and 5 of the '888 patent are invalid." Signed by Judge Ted Stewart on 5/29/2018. (jwt)