Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Testimony concerning anticompetitive conduct allowed in cattle sexing suit, (Jan 11, 2016)

By Greg Hammond, J.D.

A patented cattle sex-technology company’s expert could offer opinions based on alleged anticompetitive conduct, the federal district court in Denver has concluded. In denying a cattle genetics company’s motion to exclude, the district court determined that since the motion was filed, the court has allowed the cattle sex-technology company to reassert its monopolization and attempted monopolization counterclaims as claims in recoupment. The anticompetitive conduct opinions could therefore be introduced in support of the recoupment defense (XY, LLC v. Trans Ova Genetics, LC, January 8, 2016, Martínez, W.).

XY, LLC—the owner of patented sex-technology—filed a patent infringement suit against Trans Ova Genetics, LC—a cattle genetics company—after XY terminated a licensing agreement with Trans Ova. The court previously granted Trans Ova’s motion to reassert its monopolization and attempted monopolization counterclaims as claims in recoupment. XY has moved to exclude expert testimony based on alleged anticompetitive conduct, as the result of the court’s earlier summary judgment order that disposed of Trans Ova’s Sherman Act counterclaims. Trans Ova also moved to exclude expert testimony.

Anticompetitive conduct opinions. Since XY’s motion to exclude was filed, the court granted Trans Ova’s motion to reassert its substantive antitrust claims via a recoupment defense against XY. This ruling, according to the court, precludes XY’s arguments that the challenged opinions concerning XY’s alleged anticompetitive conduct are no longer relevant because the Sherman Act claims have been revived against XY and may still be argued to the jury. Concluding that the opinions may be introduced in support of Trans Ova’s recoupment defense, the court denied XY’s motion to exclude.

License agreement, willful infringement. Trans Ova also moved to exclude the opinions of XY’s expert concerning the interpretation of the license agreement, willful infringement, and secondary considerations of non-obviousness. The court partially granted the motion to exclude, finding that, in order to preserve the jury’s autonomy: (1) the expert may not interpret the license agreement or opine that it was breached; and (2) the expert may not testify to legal conclusions, may not opine as to the objectively high risk of infringement, and is not qualified to testify to Trans Ova’s knowledge or intent. However, the expert was allowed to testify regarding secondary considerations of non-obviousness.

Breach of contract. Lastly, Trans Ova moved to exclude expert opinions concerning breach of the license agreement. The court granted the motion, in part, finding that the expert may not opine as to whether the contract was, in fact, breached, and he may not interpret the meaning of the contract’s terms.

The case is No. 13-cv-0876-WJM-NYW.

Attorneys: Daniel Lynn Moffett (Akin, Gump, Strauss, Hauer & Feld, LLP) for XY, LLC. Donald E. Lake, III (Lewis Brisbois Bisgaard & Smith, LLP) for Trans Ova Genetics, LC.

Companies: XY, LLC; Trans Ova Genetics, LC

Cases: Antitrust ColoradoNews