The Court's order on the very important MILs in Vringo (NASDAQ:VRNG) vs. Google (NASDAQ:GOOG) was issued today. Unfortunately, I am getting ready to hop on a plane, so I can't analyze these fully, but here is my quick take on some very interesting rulings on the important motions in limine.
In brief, it appears to me as though order on the motions in limine generally favor Vringo.
Vringo's MIL No. 1: The Court granted this one virtually wholesale. Of note, the jury can't be told about the USPTO reexamination. The Court reserved ruling on the issues of whether the jury can be told of the negotiations/pricing of Vringo's purchase of the patents in suit, and about Vringo's failure to practice the inventions claimed in the patents. Neither one a huge deal in my view.
Vringo's MIL No. 2: The Court reserved ruling on whether Google can offer evidence regarding non-comparable license agreements. This means the Court will decide at Court whether there is a sufficient foundation to admit them. This calls into question whether Google will be able to argue its alternative damage calculations. Withholding a ruling on this provides settlement leverage for Vringo.
Vringo's MIL No. 3: As expected, the Court will allow Cullis, Ortega, and Rose to testify as fact witnesses, but the Court will strictly limit their testimony so as not to allow them to provide any expert testimony.
Google's MIL No. 1: The Court reserved ruling on Google's motion to exclude evidence of wilful misconduct. This provides the Court with significant leverage to move both parties from their positions at the settlement conference.
Google's MIL No. 2: The Court denied Google's motion to exclude evidence of its wealth and revenues. The Court found this evidence is relevant to the issue of calculation of royalties.
Google's MIL No. 3: The Court reserved ruling on Google's motion to exclude evidence regarding click-through rate. The Court suggested that this evidence is relevant, but may be excludable if on balance the evidence would be unfairly prejudicial to Google despite its relevance. The Court will rule on this evidence at trial, when it can see and evaluate the exact exhibits that are being offered by Vringo.
Google's MIL No. 4: The Court reserved ruling on Google's motion to exclude evidence of Google's conduct during discovery. I predicted this motion would be granted in favor of Google. The Court is withholding ruling on this, a clear signal that it may allow the jury to be told of Google's pretrial tactics. This is a very large stick that can be used the Court in the settlement conference to move Google towards settlement. Very large.
Google's MIL No. 5: The Court denied Google's motion to exclude Vringo's evidence of damages against other parties, for which Google may have joint liability. This was anticipated.
From my brief review, it looks as though the MILs were decided very significantly in Vringo's favor. The two items (MSJ and MILs) that were called out as "important things" in my first article have now been decided, either favorably to Vringo, or in a manner that creates significant leverage towards settlement.
On balance, this was a very good day for Vringo. $45 million in their pockets to show their ability to fight this to the end, and some great rulings (and even great reserved rulings) on the MILs.
Off to the airport, good luck to us all.