We recently posted about defendant ViewSonic’s Answer in Zenith Elec. v. Viewsonic, which Answer included FRAND-related affirmative defenses and counterclaims against plaintiffs Zenith, Panasonic and Philips, as well as a FRAND-related Third-Party claim against MPEG LA.  On Monday, December 2, Curtis filed a motion to bifurcate the trial in the related case brought by Zenith against it, requesting that the court try the issues of infringement and validity prior to trying Curtis’ FRAND-related defenses and counterclaims.

Prevent Juror Confusion:  Curtis argues that, absent bifurcation, there is a significant risk that the jury will be confused by the many issues faced:

track various infringement and validity issues at a patent-by-patent (and claim-by-claim) level, while considering complex damages issues that cover multiple patents and accused products, and while considering defenses and counterclaims—including exhaustion and the plaintiffs’ FRAND violations—that span the entire case and invoke entirely different legal principals.

Bifurcation will avoid confusion, streamline the evidence and  “permit the jury to focus on discrete issues, and avoid prejudice.”

Prevent Prejudice to Curtis:  Curtis argues it would be prejudiced without bifurcation, because “the jury will be asked to consider Curtis’ non-infringement and invalidity claims while weighing the fairness/reasonableness of the parties’ licensing efforts—the ‘F’ and ‘R’ in FRAND,” the latter of which, according to Curtis, are protected by Federal Rule of Evidence 408 “and should not be used to support plaintiffs’ infringement claims.”

No Prejudice to Zenith/Efficiency:  Finally, Curtis argues that bifurcation will not prejudice Zenith and will result in efficiencies. “Curtis proposes to conduct phase two of the trial before the same jury that will hear phase one” and “submits that the two weeks currently allotted for trial provides adequate time to accommodate both phases, and that the efficiencies attendant to bifurcation will help all parties address issues in a more efficient manner.”

Bifurcation of FRAND-related issues from infringement and validity issues has been considered by other courts as well. As we discussed in a prior post, the parties in In re Innovatio IP Ventures before Judge Holderman agreed to waive their rights to a jury trial on damages in order to have a bench trial to determine a RAND-rate which would, in turn, allow the parties to assess early settlement without first going through what they considered to be the expense of a liability trial on infringement and validity.  Similarly, in Interdigital v. Huawei, the defendants sought to expedite trial on their declaratory judgment for a RAND-rate, but the Court denied the request, holding that trying that issue on an expedited basis would only resolve “a sliver” of the case.