United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING NICHIA'S OBJECTIONS TO EVERLIGHT'S THEORIES OF INEQUITABLE CONDUCT [#540]
GERSHWIN A. DRAIN, District Judge.
This matter is set for the Phase 2 bench trial to commence on June 15, 2015. On May 27, 2015, Everlight filed with the Court its Submission Regarding its Inequitable Conduct Theories to be Presented at the Upcoming Phase 2 Trial. Presently before the Court are Nichia's objections to some of Everlight's asserted theories of inequitable conduct, filed on June 5, 2015. Everlight has filed a Response to Nichia's Objections and Nichia has filed a Reply in support of its objections.
Specifically, Nichia objects to three theories that Everlight seeks to raise during the Phase 2 trial. Nichia requests that based on its objections, the Court not consider the following evidence or argument:
(1) a theory of infectious unenforceability of the 960 Patent;
(2) any theory of alleged inequitable conduct regarding the 960 Patent other than a theory based on Example 8;
(3) any theory of alleged inequitable conduct specifically based on "GAG;"
(4) any theory of alleged inequitable conduct based on the tests performed by the inventors on GAG; and
(5) any inequitable conduct allegations based on the allegations of "Nichia."
Everlight asserts that Nichia has ignored this Court's directive precluding the filing of additional motions in limine and has repackaged its in limine arguments as the instant objections. Everlight further maintains that even aside from the procedural impropriety of Nichia's objections, its substantive positions are without merit and ignore large portions of Everlight's Second Amended Complaint.
A) Allegations Based on Infectious Unenforceability
Nichia argues that the Court has already decided this issue when it dismissed Everlight's inequitable conduct allegation relating to the 960 Patent in Everlight's First Amended Complaint, thus Everlight should be precluded from pursuing a theory of infectious unenforceabililty. In the First Amended Complaint, Everlight based part of its inequitable conduct theory concerning the 960 Patent on the purported inequitable conduct concerning the 925 Patent. The Court found such an allegation warranted dismissal.
Thereafter, the Court permitted Everlight to file a Second Amended Complaint in order to raise its inequitable conduct allegations again as the amendment appeared to remedy the deficiencies identified by the Court in its dismissal order. However, Everlight apparently did not remedy its infectious unenforceabililty theory related to the 960 Patent. Nichia argues that law of the case doctrine precludes Everlight from pursuing its infectious unenforceabililty theory with respect to the 960 Patent. See ...