LG Display Co. v. AU Optronics Corp.

265 F.R.D. 199, 2010 U.S. Dist. LEXIS 19074, 2010 WL 723673
District Court, D. Delaware·Decided March 2, 2010·No. Civil Action Nos. 06-726-JJF, 07-357-JJF·Published·Cited by 2 cases

Opinion

MEMORANDUM OPINION

JOSEPH J. FARNAN, Jr., District Judge.

In the second phase of the bench trial in this patent infringement action, Plaintiff, LG Display Co., Ltd. (“LGD”) asserted four patents and seven claims1 against Defendants, AUO Optronics Corporation and AUO Op-tronics Corporation America (collectively, “AUO”). The Court reserved judgment on several evidentiary objections raised by the parties during the course of the trial. The parties have briefed their respective positions on the evidentiary matters raised, and this Memorandum Opinion constitutes the Court’s rulings with regard to the pending evidentiary matters in Phase II of the Bench Trial.

I. LGD’s POST-TRIAL EVIDENTIARY OBJECTIONS

A. The Burden Of Proof

LGD’s first evidentiary objection is not an evidentiary objection at all, but an argument concerning the burden of proof. Specifically, LGD contends that it has satisfied the elements of 35 U.S.C. § 295 such that a presumption of infringement by AUO exists, and therefore, the burden of proof should be shifted to AUO to rebut this presumption. LGD’s argument is inextricably intertwined with the merits. Accordingly, the Court will not address the argument here, but in its proper context of the parties’ post-trial briefing on the merits.

B. The Testimony Of Lawrence Tannas

LGD contends that the Court should disregard the testimony of AUO’s expert witness, Lawrence Tannas, regarding the '374 patent. Specifically, LGD contends that the opinion of Mr. Tannas that AUO does not use auxiliary sealants in its ODF processes is unreliable under Fed.R.Evid. 702 and Daubert. LGD contends that Mr. Tannas did not examine any AUO sealant patterns himself, but based his opinions on incomplete conversations with Ms. Flora Fu, incomplete documentation, and photos and videos that he did not take and that did not disclose the complete sealant patterns.

In response, AUO contends that it provided the sealant patterns to both LGD and Mr. Tannas in the form of design review boards [202]*202and videos taken during the manufacturing process. AUO contends that the materials Mr. Tannas reviewed were not incomplete and that the steps Mr. Tannas undertook in preparation for his testimony support the thoroughness of his analysis.

As the Court noted in its Phase I Memorandum Opinion on the parties’ evidentiary objections, Daubert considerations are less pressing in the context of a bench trial. Further, the Court is persuaded that LGD’s arguments go more toward the weight to be afforded Mr. Tannas’s testimony than to its admissibility in the first instance, and therefore, the Court will overrule LGD’s objection.

C. AUO’s Advice Of Counsel Defense

LGD next contends that the Court should strike AUO’s advice of counsel defense for the '002 and '449 patents. Specifically, LGD refers to the testimony of AUO employee Kuan Wen (“Frank”) Hu and the written opinions at AUOTX 1090 and AUOTX 1092. LGD contends that these opinions lacked probative value, were untimely disclosed, and do not provide objective legal advice upon which AUO could reasonably rely.

In response, AUO contends that LGD’s argument goes to the merits and should be considered in the context of post-trial briefing. Alternatively, AUO contends that it did not receive notice that LGD intended to assert the '002 and '449 patents until the filing of this action, and therefore, it was reasonable for AUO to secure the opinions of counsel in 2007. AUO also contends that it disclosed its opinions of counsel on November 26, 2008, two and a half months prior to the close of fact discovery and five months prior to the close of expert discovery.

As LGD acknowledges the Court denied LGD’s Motion In Limine No. 3, in which LGD raised the same issues that it raises here. The Court is not persuaded that its pretrial ruling should be reconsidered. LGD’s arguments primarily go to the weight to be afforded to this evidence, and not to its admissibility. To the extent LGD challenges the timeliness of AUO’s disclosure of this evidence, the Court finds that the record establishes timely disclosure by AUO of its opinions of counsel and its intention to rely upon those opinions. D.1.1306 at ¶ 5-7 (Declaration of Daniel Prince). Accordingly, the Court will overrule LGD’s objection.

D. AUO’s ESP Repair Evidence

LGD also contends that AUO’s evidence regarding ESD repair and the related exhibits and testimony should be excluded because AUO failed to timely disclose the ESD Repair Spreadsheets. LGD also contends that AUOTX 1680 is inadmissible under Fed.R.Evid. 1006 related to summaries, because the underlying documents upon which the summary was based were not made available to it.

As with LGD’s previous objection, this issue was raised by LGD pretrial in its Motion In Limine No. 5, which was denied by the Court. The Court finds that the record establishes that, upon learning of LGD’s damages theory, AUO timely disclosed its ESD repair theory and its calculations in its expert rebuttal report served on April 3, 2009. D.I. 1435, Exh. H (Putnam Expert Report) at ¶¶ 20(e), 35, 37 and Exhs. 3-4. LGD had the opportunity to, and did, explore these issues with Dr. Putnam during his deposition, and therefore, the Court is not persuaded that LGD has been unduly prejudiced. Id., Exh. J. (Putnam Dep.) at 85:21-87:7, 89:22-95:3; 99:2-102:15; 301:9-304:13, 305:13-306:20, 307:6-309:1. Further, the Court is not persuaded that Fed. R. 1006 applies to AUO-1680. The document was introduced as a business record under Fed. R.Evid. 803(6), and not as a summary for “voluminous writings” under Fed.R.Evid. 1006. AUO-1680 meets the criteria for admissibility under Rule 803(6). Accordingly, the Court finds no basis upon which to strike AUO-1680 or the trial testimony related to ESD repair. Accordingly, the Court will overrule LGD’s objection.

E. Testimony of M.F. Chiang And J.S. Lin

LGD next objects to the trial testimony of M.F. Chiang and J.S. Lin that is allegedly inconsistent with their testimony as AUO’s corporate designees. Specifically, [203]*203LGD contends that M.F. Chiang would not or could not, during his deposition, answer certain questions about AUO’s mask files and TFT arrays, yet when he testified at trial, he was able to address, in detail, these items. LGD contends that Mr. Chiang works with mask files on a weekly basis, and therefore, his refusal to answer during the deposition amounts to a lack of cooperation that should result in the striking of his trial testimony.

LGD also contends that the testimony of Jung Hsiang Lin on the topic of sealant patterns should be stricken because, at his deposition, Mr. Lin’s personal knowledge of AUO’s sealant patterns was limited to his one visit to an AUO fab.

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LG Display Co. v. AU Optronics Corp., 265 F.R.D. 199, 2010 U.S. Dist. LEXIS 19074, 2010 WL 723673 (D. Del. 2010).

265 F.R.D. 199 (LG Display Co. v. AU Optronics Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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