UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

HemCon, Inc.

Proposed Order of Trial

During a telephone conference held on February 3, 2010, the

court indicated that it was considering bifurcation of the trial. 

The court proposed trying the issues of invalidity first,

followed immediately by a trial on damages, if necessary, before

the same jury.

Marine Polymer has filed two motions in limine addressing

bifurcation. In its first motion, Marine Polymer opposes

bifurcation, as proposed by the court, and argues that if the

trial proceeded as proposed, HemCon should be precluded from

suggesting to the jury that the process could be shortened if the

patent claims were found to be invalid, because in that event it

would not be necessary to consider damages. HemCon favors trying

the invalidity issue first, to be followed by damages, if

necessary, and agrees that the jury instructions should not

suggest a short cut.

In its second motion, Marine Polymer proposes that

invalidity and damages be tried together before the jury,

Case 1:06-cv-00100-JD Document 256 Filed 03/30/10 Page 1 of 3
followed by a bench trial to resolve HemCon’s inequitable conduct

defense. Marine Polymer focuses on the potential for unfair

prejudice if the jury hears evidence of inequitable conduct,

which is not relevant to the issues the jury must decide. HemCon

has not yet responded to Marine Polymer’s second motion.

After considering the issues to be presented at trial and

the possibility of bifurcation, the court proposes that the trial

proceed as follows. The jury will be selected on April 14, 2010. 

Evidence will begin on Monday, April 19, 2010, on the invalidity

defenses. If the jury finds that at least one of the asserted

claims is not invalid, the jury trial will continue, and evidence

will be presented to the same jury on damages. While the jury is

deliberating on damages, the parties will present evidence to the

court on the inequitable conduct defense. In the event that the

jury awards damages, that award would stand or be vacated

depending on the court’s finding on the inequitable conduct

defense.

“For convenience, to avoid prejudice, or to expedite and

economize, the court may order a separate trial of one or more

separate issues, claims, crossclaims, counterclaims, or thirdparty claims.” Fed. R. Civ. P. 42(b). In a matter that is

complex, the court’s proposed order of trial will allow the jury

to hear evidence on invalidity and then, if necessary, on

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damages, in a natural progression that will assist the jury in

focusing on the issues at hand, unencumbered by evidence they may

not need to consider. Only the court will hear evidence of

inequitable conduct. This procedure will minimize any unfair

prejudice to both parties, reduce the potential for confusion,

and make efficient use of juror and court time.

Conclusion

The parties shall file their responses to the court’s

proposed order of trial on or before April 5, 2010.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 30, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

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