VLSI-Intel: Day 2 & Docket Updates

The VLSI-Intel trial is underway (see Mark’s Day 1 writeup), and today’s action was devoted to about 70 minutes of testimony from VLSI inventor David Bearden, with almost the entire rest of the day’s testimony occupied by VLSI’s infringement expert Dr. Tom Conte. VLSI then briefly put on the introductory portions and general qualifications of its expert witness Dr. Murali Annavaram, whose testimony is intended to present the technical benefits allegedly delivered by the technologies of the asserted patents. Much of Dr. Conte’s testimony was under seal—unsurprisingly so, given the sensitive Intel technical documents and source code that are at issue. So what “play-by-play” we can deliver to you is correspondingly limited.

But some of the relevant action doesn’t play out in open court. Rather, it’s in the docket rulings, a series of which were just posted over the last couple days.

First, in a development that should be self-evident—given that trial is playing out in Waco as we speak—on Friday the Court denied Intel’s Renewed Motion to Continue Trial (ECF No. 504). The brief order contains no analysis, only the Court’s conclusion that the motion “is not well taken and should be denied.”

Of most note is the Court’s redacted order memorializing and formalizing the Court’s oral orders to date issued in connection with parties’ respective summary judgment motions, Daubert motions, and motions in limine (ECF No. 508). To put it briefly, there’s a lot in there—about 5 pages of rulings, ranging from 1 to about 15 lines apiece (with most being on the lower end), on about 70 different requests for relief. Given the volume, we can’t and won’t address everything here, but we’ll spotlight a few items of interest:

  • Intel successfully obtained a summary judgment order that VLSI’s ’357 patent was not infringed—thus leaving only two patents at issue for the current trial.
  • With respect to multiple issues, motions in limine were granted, subject to the caveat that “if the door is opened at trial, the parties are directed to apprise the Court outside of the presence of the jury.” (This is not an unusual protocol—and later in the week we’ll try to bring you an example of how that played out today.)
  • To the extent VLSI intends to prove that Intel’s alleged infringement is willful, “VLSI will not be permitted to argue as evidence of willfulness that Intel continued to manufacture products after they were sued.”
  • Intel is not, in fact, prohibited from referring to VLSI’s relationship with Fortress Investment Group; Intel simply can’t do so by use of “disparaging remarks.” But in any case, the word “Fortress” didn’t actually cross anyone’s lips yesterday…
  • Several Daubert and in limine motions, made by both parties, apparently attempted to cabin expert testimony from going beyond the experts’ core expertise, e.g.:
    • A couple of Intel’s economic experts are apparently precluded from commenting on validity or infringement.
    • VLSI’s technical expert is precluded from “testifying that ‘it is quite likely that if he were to examine confidential information from other companies, he’d find the patent widely used, and if he were to examine unaccused Intel products, he’d find that it would—may be used there as well.’”
  • On the damages front, “VLSI[] … will not refer to Intel as a ‘patent holdout.’”
  • To mitigate an apparent potential play for jury sympathy, Intel obtained a ruling “Exclud[ing] Prejudicial Evidence and Testimony Regarding the Deceased Inventor of [VLSI’s asserted] ’759 Patent… [VLSI] may offer that he is dead, but not the details of his death.”
  • On the inside-baseball front, the Court granted VLSI’s motion to preclude any submission from Intel regarding the “Western District as a popular venue.”

As mentioned, this is a long list—we very much encourage all readers to peruse for yourselves.

Finally, yesterday the Court also issued an Amended Notice of Trial Procedures (ECF No. 506). Other than updating the dial-in information to access the telephonic feed of court proceedings (which we brought you yesterday), and addressing a couple typos, this document is substantively identical to the Court’s February 10 version of the trial procedures (which we also briefly covered).

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