Opinion
Case No. 4:00CV84 CDP
November 5, 2002
ORDER
For the reasons stated on the record at today's hearing,
IT IS HEREBY ORDERED that plaintiff's motion for summary judgment [# 157] is granted in part and denied in part as follows: Plaintiff is granted summary judgment as to all counts of defendant's counterclaim, and the counterclaim is dismissed, in its entirety. Plaintiff is granted summary judgment on liability only on Count II of plaintiff's complaint, patent infringement. Plaintiff is granted summary judgment on Count III only as to liability for breach of the 1998 technology agreement. Summary judgment on Count III is denied as to the breach of contract claim for the 1997 technology agreement, and as to damages for the breach of the 1998 agreement. To the extent the defendant's affirmative defenses are duplicative of the counterclaim, those defenses are also stricken as insufficient, for the same reasons that the counterclaim fails.
IT IS FURTHER ORDERED that plaintiff's motions to dismiss [#109] and to exclude testimony of witnesses [#158, 159] are denied as moot.
IT IS FURTHER ORDERED that defendant's motion to continue trial setting [#167] is denied.
This case remains set for jury trial on the two-week docket beginning on December 2, 2002. The following claims from plaintiff's complaint remain for trial: Count I (all issues); Count II (damages only); Count III (all issues with regard to the 1997 contract; damages only with regard to the 1998 contract); Count IV (all issues); and Count V (all issues). The parties are reminded that their pretrial submissions are due no later than Tuesday, November 12, 2002, and that those submissions should reflect the issues actually to be tried, as reflected in this order.