Free Order - District Court of Delaware - Delaware

Case 1:04-cv-00204-JJF Document 274 Filed 06/21/2005 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KYPHON, INC., :
Plaintiff, ;
v. ; Civil Action No. 04-204 JJF
DISC—O—TECH MEDICAL TECHNOLOGIES ;
LTD. and DISC ORTHOPAEDIC :
TECHNOLOGIES, INC., :
Defendants. ;
O R D E R
WHEREAS, Plaintiff Kyphon, Inc. (“Kyphon”) filed
Motions In Limine (D.I. 204);
WHEREAS, Kyphon filed a Motion In Limine #1 To Preclude
Admission Of, Or Reference To, Portions Of Dr. Mitchell’s Expert
Testimony Relating To But Failing To Properly Analyze
Obviousness;
WHEREAS, the Court concludes that Kyphon has adequate
recourse should it believe Dr. Mitchell’s testimony departs from
the contents of his expert report;
WHEREAS, Kyphon filed a Motion In Limine #2 To Preclude
Evidence Regarding Recreation of Prior Art Procedure;
WHEREAS, Defendants have agreed to not to use the X—Ray
component of the recreation at trial;
WHEREAS, Kyphon filed a Motion In Limine #4 To Preclude
Admission Of, Or Reference To, Any DOT Patents Or Patent

Case 1:04-cv-00204-JJF Document 274 Filed 06/21/2005 Page 2 of 2
Applications That Cover The Accused Device;
WHEREAS, the Court concludes that Defendants’ separate
patents are irrelevant to the issue of infringement;
WHEREAS, Kyphon filed a Motion In Limine #5 To Preclude
Reference To Kyphon's Streamlining Of Its Infringement Claims;
WHEREAS, the Court concludes that Kyphon's efforts to
simplify this case for trial are not relevant to the merits of
any issue being presented to the jury;
NOW THEREFORE, IT IS HEREBY ORDERED that:
I) The Motion In Limine #1 To Preclude Admission Of, Or
Reference To, Portions Of Dr. Mitchell's Expert Testimony
Relating To But Failing To Properly Analyze Obviousness is
DENIED;
- 2) The Motion In Limine #2 To Preclude Evidence
Regarding Recreation of Prior Art Procedure is DENIED;
3) Motion In Limine #4 To Preclude Admission Of, Or
Reference To, Any DOT Patents Or Patent Applications That Cover
The Accused Device is GRANTED;
4) The Motion In Limine #5 To Preclude Reference To
Kyphon’s Streamlining Of Its Infringement Claims is GRANTED.
June 2005 6kAA/w>c
DATE TED ST ES DISTRIC GE

Case 1:04-cv-00204-JJF

Document 274

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