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Prism Technologies, LLC v. T-Mobile USA, Inc.

United States District Court, D. Nebraska

October 5, 2015

PRISM TECHNOLOGIES, LLC, Plaintiff,
v.
T-MOBILE USA INC., Defendant.

ORDER

LYLE E. STROM, SENIOR JUDGE

This matter is before the Court on cross motions in limine from both the plaintiff Prism Technologies, LLC (“Prism”)(Filing No. 358) and defendant T-Mobile USA, Inc. (“T-Mobile) (Filing No. 362). After review of the motions, briefs, indices of evidence, and relevant case law, IT IS ORDERED:

I. PRISM’S MOTIONS IN LIMINE

1) Neither party may make disparaging remarks or references to the patent system or patents.

Granted.

2) T-Mobile may not make any reference regarding any motives for filing the current (and related) actions.

Granted.

3) Neither party may refer to whether testimony from any expert witness was excluded.

Granted.

4) Neither party may refer to Prism’s prior patent infringement lawsuits or current affiliated entities and their current business or litigation activities, except that the parties may discuss Prism’s settlement agreements to establish reasonable damages and for secondary considerations of nonobviousness.

Deferred until trial.

5) T-Mobile may not disparage or use derogatory terms about Prism or its parent or related entities. Such disparaging or derogatory terms include “patent troll, ” “patent assertion entity, ” “shake down, ” “hold-up, ” “stick up, ” “ringing the bell, ” “blackmailers, ” “greenmailers, ” “pirate, ” “bounty hunter, ” “privateer, ” “bandit, ” “paper patent, ” “submarine patent, ” “playing the lawsuit lottery, ” “a company that doesn't make anything, ” “a company that doesn't sell anything, ” “litigation assertion entity” or “nonpracticing entity.” The parties may, however, refer to Prism’s origins as a practicing company and to the fact that Prism is no longer a practicing company.

Granted in part, denied in part. T-Mobile shall not use the following terms about Prism: “patent troll, ” “patent assertion entity, ” “shake down, ” “hold-up, ” “stick up, ” “ringing the bell, ” “blackmailers, ” “greenmailers, ” “pirate, ” “bounty hunter, ” “privateer, ” “bandit, ” “paper patent, ” “submarine patent, ” “playing the lawsuit lottery, ” or “litigation assertion entity.” However, T-Mobile may use the following terms “a company that doesn't make anything, ” “a company that doesn't sell anything, ”or “nonpracticing entity.”

6) T-Mobile may not argue that Prism has committed inequitable conduct or failed to disclose prior art to the Patent Office as T-Mobile has not asserted inequitable conduct as defense. T-Mobile may argue that certain references were not reviewed or considered by the Patent Office.

Granted.

7) T-Mobile may not argue that Prism is trying to prevent or interfere with T-mobile’s customers receiving data services, as Prism does not seek an injunction.

Granted.

8) T-Mobile may not introduce any argument, testimony, evidence or expert opinion that a damages award may increase the price of T-Mobile’s wireless data services, put T-Mobile out of business, cause jobs to be lost or negatively impact the quality and/or price of T-Mobile’s wireless data services.

Granted.

9) T-Mobile cannot present an argument that, because an unasserted claim was rejected by the PTO during examination, one or more asserted claim(s) would also be invalid. This does not preclude T-Mobile from referencing the prosecution history of the asserted claims.

Granted.

10) T-Mobile may not argue that it respects the intellectual property rights of others and Prism will not refer to the fact that T-Mobile is often sued for and settles patent infringement lawsuits.

Deferred until trial.

11) T-Mobile may not present evidence or argument that Mr. Minor has served as an expert for individuals accused of sexual assault. The parties may note that Mr. Minor has served as an expert for the prosecution and defense in capital murder cases and in civil actions.

Granted.

12) Neither party may present testimony, argument, evidence or expert opinion regarding pleadings, contentions or orders from Prism’s other actions against the wireless carriers, including Prism Technologies, LLC v. AT&T (8:12CV122); Prism Technologies, LLC v. Sprint Spectrum L.P. d/b/a Sprint PCS (8:12CV123); Prism Technologies, LLC v. U.S. Cellular Corp. (8:12CV125); and Prism Technologies, LLC v. Cellco Partnership d/b/a Verizon Wireless (8:12CV126), with the exception that the parties may provide context to interpret the AT&T Settlement Agreement, such as the damages contentions of the parties to the AT&T action.

Denied. Parties may use the prior testimony of an expert witness from the AT&T or Sprint trials to cross-examine the same witness in this trial.

13) T-Mobile may not present testimony, argument, evidence or expert opinion regarding a non-infringing alternative.

Deferred until Court’s ruling on pending motions (Filing No. 355 and Filing No. 369).

14) T-Mobile’s damages expert, Christopher Bakewell, may not present trial testimony or an opinion regarding any non-infringing alternatives.

Deferred until the Court’s ruling on pending motions (Filing No. 355 and Filing No. 369).

15) T-Mobile’s non-infringement expert, Mr. James Proctor, may not present trial testimony or an opinion regarding any non-infringing alternatives.

Deferred until the Court’s ruling on pending motion (Filing No. 355).

16) T-Mobile will not call Cameron Byrne or Kirti Krishnan as ...


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