Litigation, like politics, sometimes devolves into name-calling. However, unlike politics, litigation is subject to control by a responsible adult, namely the judge. Prior to trial, each party submits to the judge a multitude of requests that evidence – deemed by its opponent to be critical to its case – is, in fact, improper for one or more reasons and, hence, should be excluded. These requests are known in the law biz as “motions in limine.” Recently, a judge granted one such motion, ruling that certain terms are improper and could not be presented to a jury. (Abbott Laboratories, et al. v. Sandoz, Inc.)
Abbott had accused Sandoz of patent infringement. Apparently, big bucks were at stake and the parties were leaving no legal stone unturned – or unthrown. Abbott filed twelve (yes, 12) motions in limine. Sandoz responded with nine motions of its own.
The motion of interest is one filed by Abbott, seeking to prevent Sandoz from using the term “monopoly” at trial. Abbott argued that this appellation was “not relevant, and invocation of such term would unfairly prejudice Abbott … by suggesting that Abbott’s enforcement of patent rights is unfair or unlawful and improperly inviting the jury to view Abbott in a negative light.”
Sandoz, as might be expected, argued – apparently with a straight face – that the term was not “unfairly prejudicial.” The term “monopoly,” it maintained, “appropriately describes the patentee’s legal right to exclusion, and the jury would understand that this right is the reward for the patentee’s effort.” Come on!
The judge did not buy the Sandoz argument, granting the motion “for the reasons articulated by Abbott.”
THE LESSON TO BE LEARNED: Language can sway a jury, but you have to get it past the judge.
Yes, one often wishes that referees such as judges (or other "responsible adults") existed in the world of politics, as well.