Kolcraft Enters., Inc. v. Chicco USA, Inc., No. 09 C 3339, Slip Op. (N.D. Ill. Jul. 17, 2018) (Chang, J.).

Judge Chang sua sponte notified the parties of the Court’s inclination to exclude any evidence of an inter partes reexam of the patent-in-suit as unduly prejudicial pursuant to Fed. R. Evid. 403, although both parties appeared to want to use portions of the reexam for their respective cases. The Court reasoned as follows, requiring that the parties be prepared to discussion the issue at the upcoming pretrial conference:

• Evidence of the reexam would consume substantial trial time;
• There was a “significant danger” that the reexam could confuse the jury;
• There was “substantial risk” that the jury would defer to the reexam and use its analysis instead of performing its own invalidity analysis;
• The reexam claim construction standard is different from the district court standard;
• The reexam issues appear to have little relevance, in particular because the patent is presumed valid; and
• The Federal Circuit has repeatedly warned against the value of reexams to establish good faith belief in invalidity.

So, while, as the Court previously noted, the reexam may have some relevance to willfulness arguments, that “little probative value” would “pale” compared to the time required to present the evidence and the confusion it could cause.