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Bombardier Recreational Products, Inc. v. Arctic Cat, Inc.

United States District Court, D. Minnesota

November 11, 2017

BOMBARDIER RECREATIONAL PRODUCTS, INC., and BRP U.S. INC., Plaintiffs,
v.
ARCTIC CAT INC., and ARCTIC CAT SALES INC., Defendants.

          Harry C. Marcus, LOCKE LORD LLP, Three World Financial Center, New York, NY 10281, and Kevin D. Conneely and Ruth A. Rivard, STINSON LEONARD STREET LLP, 50 South Sixth Street, Suite 2600, Minneapolis, MN 55402, for plaintiffs.

          Aaron A. Myers, Diane L. Peterson, and Niall A. MacLeod, KUTAK ROCK LLP, 60 South Sixth Street, Suite 3400, Minneapolis, MN 55402, for defendants.

          MEMORANDUM OPINION AND ORDER ON MOTIONS IN LIMINE

          JOHN R. TUNHEIM Chief Judge United States District Court

         Plaintiffs Bombardier Recreational Products, Inc. and BRP U.S. Inc. (collectively “BRP”) brought this action against Arctic Cat Inc. and Arctic Cat Sales Inc. (collectively “Arctic Cat”), alleging patent infringement. Trial beings Monday, November 13, 2017. This order addresses the parties' motions in limine.

         BACKGROUND

         BRP alleges that Arctic Cat infringes two of its patents: U.S. Patent No. 7, 124, 847 (“the '847 patent”) and U.S. Patent No. 7, 213, 669 (“the '669 patent”). The Court granted BRP summary judgment of infringement with respect to the '847 patent. (Mem. Op. & Order, Dec. 29, 2016, Docket No. 781.) The issues for trial include whether Arctic Cat infringes the '669 patent, whether Arctic Cat's infringement was willful, whether the asserted claims of BRP's patents are invalid or unenforceable, and damages.

         DISCUSSION

         I. BRP'S MOTIONS IN LIMINE

         A. BRP's Motion in Limine No. 1

         BRP seeks to preclude Arctic Cat from introducing anything at trial that was not explicitly and specifically identified in Arctic Cat's responses to BRP's interrogatories under Federal Rule of Civil Procedure 37.

         BRP's Interrogatory No. 23 asked Arctic Cat to detail the chain of custody and dates of manufacture, sale, and public use for any prior-art snowmobile that Arctic Cat intends to rely on at trial for its invalidity defense. Arctic Cat failed to provide any response to Interrogatory No. 23 for seven snowmobiles that Arctic Cat listed on its Prior Art/Invalidity Statement.[1] Arctic Cat may therefore not introduce at trial any of those seven snowmobiles to show that any claims of the patent-in-suit are invalid. The Court will grant BRP's motion in this respect and deny it in all other respects.

         B. BRP's Motion in Limine No. 2

         BRP seeks to exclude Arctic Cat's allegedly improper evidence and arguments based on the assertion of attorney-client privilege. To rebut BRP's willfulness allegations, Arctic Cat has made a limited waiver of attorney-client privilege with respect to its invalidity opinions. Because Arctic Cat resisted discovery with respect to noninfringement opinions, the Court will grant BRP's motion. Arctic Cat may, however, introduce nonprivileged information, such as the fact that certain individuals attended meetings or were involved in certain processes.

         C. BRP's Motion in Limine No. 3

         BRP seeks to preclude Arctic Cat from presenting evidence, including expert testimony, that contravenes the court's rulings. BRP's Memorandum in Support of its Motion in Liminie No. 3 contained six subsections. The Court will grant in part and deny in part BRP's motion.

         With respect to Sections II.A, II.B, and II.D. of BRP's motion, witnesses - including BRP's witnesses - may not offer testimony that is contrary to the Court's prior orders. With respect to indefiniteness, Arctic Cat may present evidence on factual disputes. With respect to Section II.E. of BRP's motion and consistent with the Court's prior orders, Arctic Cat may not use prior art not disclosed in its Prior Art Statements to substantively support its invalidity positions. Arctic Cat may, however, use such prior art as background or generalized information. The Court will grant BRP's motion with respect to Section II.F. of BRP's motion and deny it with respect to Section II.C. of BRP's motion.

         D. BRP's Motion in Limine No. 4

         BRP moves to preclude Arctic Cat from arguing and presenting evidence, including expert testimony, that the '847 patent “upper column” claim limitation is admitted prior art. BRP previously moved to strike this argument from Arctic Cat's expert report, but the Court denied BRP's motion to strike. Thus, the Court will deny BRP's motion.

         E. BRP's Motion in Limine No. 5

         BRP seeks to admit - and Arctic Cat seeks to exclude - Arctic Cat's sales of post model year (“MY”) 2013 snowmobiles because those snowmobiles are not part of BRP's infringement case. BRP argues that Arctic ...


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