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Exmark Manufacturing Company Inc. v. Briggs & Stratton Corp.

United States District Court, D. Nebraska

December 7, 2018

EXMARK MANUFACTURING COMPANY INC., Plaintiff,
v.
BRIGGS & STRATTON CORPORATION, Defendant.

          ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         A final pretrial conference was held on the 16th day of October 2018. Appearing for the parties as counsel were:

For Plaintiff Exmark: J. Derek Vandenburgh, Joseph W. Winkels, Jill Robb Ackerman
For Defendant Briggs: Marc Cohn, Ken Lemke, John P. Passarelli, Carol A. Svolos

         (A) Reservation of Rights.

         In light of the issues pending before or recently resolved by the Court, including Exmark's Motion to Reaffirm the Jury Verdict That Briggs's Infringement Was Willful (see Filing Nos. 723, 720, 737, 748), Exmark's Motion to Reaffirm Summary Judgment That the Asserted Claims of the ‘863 Patent Are Not Invalid in View of the Prior Art (see Filing Nos. 722, 719, 741, 750), and Briggs's Motion to Exclude Certain Opinions and Testimony from Exmark's Damages Expert Melissa Bennis (see Filing Nos. 757, 759, 764, 774), each party reserves the right to supplement its objections to exhibits, identification of witnesses as either will call/may call, and whether a witness will be made available for live testimony at trial, until November 21, 2018.

         (B) Exhibits.

         See attached Exhibit Lists. (Attachments 1 and 2)

         The attached Exhibit Lists contain the parties' good-faith efforts to identify the entire universe of exhibits to be used at trial, as well as objections to the admission of such exhibits. Prior to November 14, 2018, each party may add up to five (5) exhibits to its exhibit list without a showing of good cause. Thereafter, the exhibit lists shall not be supplemented without approval of all parties or leave of the court, on good cause shown. The mere listing of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met.

         (C) Uncontroverted Facts.

         The parties have agreed that the following may be accepted as established facts for purposes of this case only:

The parties agree that the following facts are uncontroverted and may be read to the jury at such time(s) throughout the trial as needed to put the uncontroverted fact in context.
1. Plaintiff Exmark Manufacturing Co., Inc. is a Nebraska corporation with a principal place of business in Beatrice, Nebraska.
2. Exmark is the owner of U.S. Patent No. 5, 987, 863 (“the ‘863 patent”), which issued on November 23, 1999. The ‘863 patent expired on November 23, 2015.
3. Defendant Briggs & Stratton Corp. is a Wisconsin corporation with a principal place of business in Wauwatosa, Wisconsin.
4. Briggs makes and sells mowers under the Ferris and Snapper Pro brand names.
5. If a document is introduced at trial having a bates number beginning with “EXM” the document was in the possession, custody, or control of Plaintiff Exmark.
6. If a document is introduced at trial having a bates number beginning with “BRIGGS” the document was in the possession, custody, or control of Defendant Briggs.
7. Briggs has manufactured and sold lawn mowers of particular designs, including under the Ferris and Snapper Pro brands, that infringe claim 1 of Exmark's ‘863 patent.
8. In 1999, Simplicity Manufacturing, Inc. acquired Ferris as a wholly-owned subsidiary.
9. On July 4, 2004, Briggs acquired Simplicity. After the acquisition, Ferris was structured as a wholly-owned ...

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