|July 21, 2012|
Previously published on July 19, 2012
On July 16, 2012, ALJ David P. Shaw issued Order No. 33 and Order No. 34 in Certain Video Analytics Software, Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-795). In Order No. 33, ALJ Shaw ruled on two motions in limine filed by Complainant ObjectVideo, Inc. (“ObjectVideo”) and one motion in limine filed by Respondents Bosch Security Systems, Inc., Robert Bosch GmbH, Bosch Sicherheitssysteme GmbH, Bosch Security Systems B.V., Bosch Sicherheitssysteme Engineering GmbH, Bosch Security Systems - Sistemas de Seguranca, S.A., Bosch (Zhuhai) Security Systems, Co., Ltd., and Extreme CCTV, Inc. (collectively, “Bosch”). In Order No. 34, ALJ Shaw denied one motion to strike filed by Bosch and one motion to strike filed by ObjectVideo.
According to Order No. 33, ObjectVideo filed a motion to exclude certain testimony of Dr. Aggelos Katsaggelos as outside the scope of expert reports and deposition testimony. Bosch opposed the motion. The Commission Investigative Staff (“OUII”) supported the motion in part and opposed the motion in part. After considering the arguments, ALJ Shaw determined to grant the motion in part. In particular, the ALJ found that while it had not been shown that all of the testimony at issue should be stricken, certain portions of the testimony needed to be excluded. Specifically, he found that the contested portions of the testimony pertaining to the Nasburg patents were not sufficiently supported by Dr. Katsaggelos’s prior opinions, particularly in his initial expert report, and should be excluded.
Also according to Order No. 33, ObjectVideo filed a motion to exclude testimony contained in the rebuttal witness statement of Michael Meyer as improper lay opinion. Bosch and OUII opposed the motion. After considering the arguments, ALJ Shaw determined to deny the motion. In particular, the ALJ found that while some portions of the Meyer testimony may be accorded less weight than others, there was no need to exclude the rebuttal witness statement.
Further according to Order No. 33, Bosch filed an omnibus motion in limine containing four requests for exclusion. ObjectVideo generally opposed the motion. OUII supported the motion in part and opposed the motion in part. After considering the arguments, ALJ Shaw determined to grant the motion in part. In particular, the ALJ found that the testimony and other evidence at issue in parts I (state of mind and alleged copying) and III (extrinsic evidence and related argument) may be accorded some weight in the investigation, and need not be excluded. However, with respect to part II (evidence and argument concerning the doctrine of equivalents), ALJ Shaw found that ObjectVideo had not made its allegations known at the proper time in the investigation and had not provided details of those allegations to the other parties. Accordingly, the ALJ granted Bosch’s motion to strike with respect to part II. ALJ Shaw also granted Bosch’s motion to strike with respect to part IV (alleged infringement by Bosch of claims 4 and 21 of U.S. Patent No. 7,868,912) because those claims had not been properly asserted against Bosch in the investigation.
According to Order No. 34, Bosch filed a motion to strike the Supplemental Expert Report of Dr. Kenneth A. Zeger. Bosch argued that ObjectVideo had served the supplemental report more than five weeks after the deadline for opening expert reports and after expert discovery had closed. ObjectVideo opposed the motion, arguing that the supplemental report had been served on Bosch’s counsel before Dr. Zeger’s deposition and had not prejudiced Bosch in any way. ObjectVideo further argued that Dr. Zeger’s supplemental report was prompted by substantive changes made by Bosch’s Michael Meyer to his deposition testimony through an errata sheet. After considering the arguments, ALJ Shaw determined to deny the motion. The ALJ noted that while ObjectVideo should have filed a motion for leave to file the supplemental report, Bosch had not shown that the supplemental report must be stricken.
Also according to Order No. 34, ObjectVideo filed a motion to strike the errata sheet submitted by Bosch for Meyer’s deposition testimony. ObjectVideo argued that Bosch had failed to timely submit the errata sheet for Meyer’s deposition and had inappropriately made substantive changes to Meyer’s testimony. Bosch opposed the motion, arguing that since the deposition had not been noticed under or taken pursuant to the Federal Rules of Civil Procedure, ObjectVideo’s allegations of untimeliness and impermissible substantive changes must fail. Bosch further argued that the change made in the errata sheet was permissible because it did not contradict or substantively change the original testimony. Bosch also argued that ObjectVideo was attempting to use the errata sheet as an excuse to serve untimely expert opinions. After considering the arguments, ALJ Shaw determined to deny the motion. In particular, the ALJ found that while Meyer’s deposition had not been taken pursuant to the Federal Rules, Meyer did testify as a party witness, and it was therefore expected that his deposition would be taken and relied upon according to normal practice and procedures associated with a party witness. Nevertheless, the ALJ found that ObjectVideo had not shown that the errata sheet submitted by Bosch for the Meyer deposition testimony needed to be stricken.