Opinion
CIVIL ACTION NO. 10-4862 JCS
10-25-2011
VISTAN CORPORATION, Plaintiff, v. FADEI USA, INC., PAN AMERICAN ENGINEERING and EQUIPMENT CO., INC., MANUEL SILVA, and MARIANI PACKING CO., INC., Defendants. FADEI USA, INC., PAN AMERICAN ENGINEERING and EQUIPMENT CO., INC., MANUEL SILVA, and MARIANI PACKING CO., INC., Counterclaimants, v. VISTAN CORPORATION, Counterdefendant.
[PROPOSED] ORDER REGARDING EXPERT TESTIMONY AND EXTRINSIC
EVIDENCE AT CLAIM CONSTRUCTION HEARING
The Court, in accordance with the parties' stipulation, Orders as follows:
1. Plaintiff's Extrinsic Evidence and Defendants' Reservation. Plaintiff's proffered extrinsic evidence for the claim construction hearing will be limited to i) the dictionary definitions cited in their Preliminary Claim Constructions, which are attached to the Joint Prehearing Statement as Exhibit B, the substance of which is repeated at Exhibit D-1; and ii) expert opinion in the form of declarations only, from any of Plaintiffs' witnesses designated in Section VII.1 to the Joint Prehearing Statement (Mr. Silberman, Mr. Davis, and Mr. Jones), and only with regard to the construction of the term "active assembly." Defendants reserve the right challenge the admission of Plaintiff's extrinsic evidence at the time of the claim construction hearing, or by whatever other deadline such challenges are due.
2. Defendants' Extrinsic Evidence and Plaintiff's Reservation. Defendants' proffered extrinsic evidence for the claim construction hearing will be solely limited to i) expert opinion testimony in the form of declarations only, from the two expert witnesses designated in Section VII.2 of the Joint Prehearing Statement (Dr. Velinsky and Dr. Klopp). and only with regard to the construction of the term "active assembly;" and ii) the photographs and video identified in section VII.2.f of the Joint Prehearing Statement (together with any demonstratives as noted). Plaintiff reserves the right challenge the admission of Defendants' extrinsic evidence at the time of the claim construction hearing, or by whatever other deadline such challenges are due.
3. Deposition of Designated Experts. There shall be no depositions of the witnesses disclosed in the Joint Prehearing Statement with regard to claim constructions issues; provided, however, that the Parties reserve the right to depose any such witnesses for purposes other than claim construction in such witnesses' capacity as a percipient witness or, to the extent ultimately designated as testifying experts pursuant to FRCP 26, an expert witness.
4. No Admission of Relevance. The Parties' agreement herein shall not be considered an admission or concession by any Party as to the relevance or need for the Court to consider the proffered extrinsic evidence.
Judge Joseph C. Spero