In Leapfrog Enters. v. Fisher-Price, Inc., (D. Del. 2005), a magistrate judge granted defendant Fisher-Price’s motion in limine to preclude plaintiff, Leapfrog, from alleging and introducing evidence of copying by Fisher-Price. In particular, the magistrate judge refused to allow Leapfrog to introduce at trial the fact that Fisher-Price possessed Leapfrog’s LeapPad product during the development of the accused product.
One factor of willful infringement is defendant’s deliberate copying of plaintiff’s ideas or designs, including copying of the commercial embodiment of the claims (and not just the claims themselves). In Leapfrog, the magistrate found that, as a threshold matter, Fisher-Price’s possession of the LeapPad product during development of the accused product was relevant to the issue of willful infringement. The magistrate still granted Fisher-Price’s motion to exclude such evidence, however, because Leapfrog had no expert testimony to prove that the LeapPad product embodied four out of the five claim elements of the asserted claim. Thus, because Leapfrog could not “close the evidentiary loop” and connect its product to the claims, it was irrelevant whether Fisher-Price copied Leapfrog’s product.
The Leapfrog Court held that although it was not necessary for Leapfrog to show that its LeapPad product was an embodiment of “every” limitation of the asserted claim, a plaintiff must adduce “some” evidence amounting to more than “mere attorney argument” that its product is an embodiment of the “ideas or design” of an asserted claim.