Unreported / Non-Citable
Background
Resh, Inc. sued Robert Conrad, Inc. (d/b/a Skimlite Manufacturing), James R. Conrad and Barrett R. Conrad, alleging that their telescoping pool poles infringe U.S. Patent No. 11,141,852. An earlier summary judgment ruling held the asserted two-tube claims invalid as obvious, leaving Claim 20, which requires a three-tube pole, for trial. Jury selection was set for November 2, 2026.
In this Final Pretrial Order, Judge Edward J. Davila resolved six motions in limine, four motions to amend, a motion for limited discovery and a Daubert motion. Resh sought to exclude Defendants' alleged prior art A.G. Pro Pole and its witnesses. Resh also sought to add a false patent marking claim based on a June 2026 Instagram advertisement for a SnapPro pole, a new witness and several exhibits, and to take related discovery. It further moved to exclude Defendants' substitute technical expert, Dr. Feland, who replaced Dr. Pratt after medical issues. Defendants sought to bar damages theories, lay expert opinion, prior-litigation allegations and two-tube evidence.
The Court’s Holding
The court denied both of Resh's motions in limine. Authentication under Rule 901, through testimony from the pole's alleged maker, is enough, and chain-of-custody doubts go to weight rather than admissibility. The three prior-art witnesses' memory and bias are matters for cross-examination. The court granted Defendants' MIL No. 1, barring reasonable running royalty, lump-sum royalty and price erosion theories. Resh has no damages expert, and the lay testimony of Eric and Jenel Resh cannot supply the economic and market analysis those theories require. The court did not exclude Resh's basic lost-profits theory (infringing units sold times Resh's profit per pole), and it will consider a post-trial motion on reasonable royalty if the record supports one. MIL No. 3 was granted, excluding allegations about the 2018 lawsuit, corporate identity, unasserted patents and Defendants' own patent prosecution. MIL No. 4 was granted as to the two-tube claims and deferred as to undisclosed three-tube and copying evidence, which counsel must raise with the court before presenting it. MIL No. 2, on lay witnesses offering expert-type opinions, was deferred to trial, though the court said it will enforce Rules 701 and 702.
The court denied all four motions to amend and the motion for limited discovery. Under Rule 16(b)'s good-cause standard and the six Pomona factors, it found Resh diligent in seeking the false marking claim, the new witness Scott Provorse and the new exhibits. Even so, imminent trial, Defendants' opposition, prejudice from reopening discovery and doubtful relevance weighed against relief. The SnapPro pole is a two-tube product and not an accused product. The court also expressed Rule 403 and hearsay concerns about the Provorse evidence. It did not reach futility or bad faith on the false marking claim.
The Daubert motion was granted in part. The court found Dr. Feland's adoption of Dr. Pratt's opinions generally reliable because he independently evaluated them. It kept Dr. Pratt's report out of evidence, required Defendants to disclose the materials Dr. Feland actually relied on, and excluded his opinion that Resh's evidence is insufficient to show copying as a matter of law. It also excluded any new opinions from a September 14, 2026 inspection that go beyond Dr. Pratt's report. All other requests were denied.
Key Takeaways
- Prior art is authenticated by a witness with knowledge under Rule 901, and chain-of-custody objections ordinarily affect weight rather than admissibility.
- A patentee relying only on lay witnesses may be barred from presenting reasonable royalty or price erosion theories, even though 35 U.S.C. § 284 does not require expert testimony as such.
- Late attempts to add claims, witnesses or exhibits face Rule 16(b) good cause, and diligence alone does not carry the motion when trial is imminent and the opponent would be prejudiced.
- A substitute expert may adopt a predecessor's opinions after independent evaluation and within the original report's scope, but legal conclusions and new undisclosed opinions can be excluded.
Why It Matters
This is an interlocutory pretrial order, not a final judgment, and it is not a reported decision with precedential weight. It narrows the trial to Claim 20, the A.G. Pro Pole obviousness defense and a lost-profits damages theory. Open items include the deferred rulings on lay opinion and three-tube or copying evidence, and any post-trial royalty motion.
Practitioners should note how the court applies Rules 701 and 702 and the Pomona factors to a plaintiff that proceeded without a damages expert and tried to add evidence weeks before trial.