Skillz Platform Inc. v. AviaGames Inc.

Background

The court addressed nine motions in limine, which are pretrial requests to limit what evidence or arguments may be presented to the jury. Skillz filed four motions, and AviaGames filed five. The court had issued oral rulings at the November 9, 2023 pretrial conference and expanded on those rulings in this order.

Skillz’s motions

1. Evidence about unasserted or invalid claims and patents — granted. The court granted Skillz’s Motion in Limine No. 1 as to evidence that the ’602 Patent was found unpatentable. The court did not bar AviaGames from using the ’602 Patent or Skillz’s other intellectual property to challenge damages expert Jim Bergman’s opinion about the value of the ’564 Patent.

2. Brian Napper’s reasonable-royalty opinion — denied. The court denied Skillz’s Motion in Limine No. 2 regarding the Epps Agreement. It also denied the motion regarding the Shanghai Agreement, subject to AviaGames producing an independent valuation report by November 16, 2023 so that Bergman could review it and offer a rebuttal. The court stated that if AviaGames did not timely produce the report, it would grant Skillz’s motion regarding the Shanghai Agreement.

3. Evidence about Skillz’s conduct and other litigation — granted in part and denied in part. The court denied the motion as to evidence of bots. That evidence could be used in connection with damages and to cross-examine Skillz’s chief executive officer, Andrew Paradise, about fairness and credibility. The court granted the motion as to evidence of racism, Skillz’s restatement of its consolidated financial statements, and other litigation and regulatory actions. Remarks suggesting racial animus had to be redacted from trial evidence.

4. Employee wealth, compensation, and Skillz’s financial condition — granted in part and denied in part. The court granted the motion as to evidence of Skillz employees’ compensation and wealth, Skillz’s stock price, and Skillz’s motive for bringing the case. It denied the motion as to using Skillz’s financial condition, including market share and profits, to help damages experts evaluate whether the damages demand was reasonable or unreasonable.

AviaGames’ motions

1. Non-patent allegations — granted in part and deferred in part. The court granted AviaGames’ Motion in Limine No. 1 as to evidence of the copyright lawsuit. It deferred ruling on allegations of fraud or criminal activity because admissibility depended on how particular evidence was presented. AviaGames could raise specific objections under Federal Rules of Evidence 403 and 404 at trial. The court stated that evidence of bot use could be offered to prove elements of the patent claims, infringement, damages, and willfulness, but could not be presented in a way that suggested AviaGames was cheating customers or committing a crime or fraud.

2. New bot arguments — denied. The court denied AviaGames’ Motion in Limine No. 2. It found that Skillz expert Jose Zagal’s supplemental report was consistent with his original report and that Skillz’s theory that AviaGames used bots to practice the asserted patent limitations could be presented.

3. Third-party statements — deferred. The court deferred ruling on AviaGames’ Motion in Limine No. 3 concerning customer reviews, news coverage, and other third-party statements. AviaGames had not identified specific evidence, and admissibility would require an individualized, fact-specific decision. AviaGames could raise hearsay or Rule 403 objections to particular evidence at trial.

4. Jim Bergman’s damages opinions — denied. The court denied AviaGames’ Motion in Limine No. 4. It found that Bergman’s 30% royalty opinion, his adjustment to 35%, his selection of five key features of Skillz’s software development kit, and his decision to assign those features equal value had sufficient support to be admitted. The court treated AviaGames’ challenges primarily as arguments about the weight of the opinion, which could be addressed through cross-examination.

5. Discovery disputes and witnesses’ Fifth Amendment assertions — granted in part and deferred in part. The court granted AviaGames’ Motion in Limine No. 5 as to evidence of the parties’ discovery disputes. It deferred ruling on whether evidence of witnesses’ assertions of their Fifth Amendment rights should be excluded and whether Skillz could request an instruction allowing the jury to draw an adverse inference. The court stated that those issues required a case-specific decision. The ruling did not prevent Skillz from offering AviaGames’ interrogatory responses, subject to relevance objections.

Classification and effect

This was a procedural order about the admissibility and presentation of evidence before trial. It did not decide whether either party prevailed on the underlying patent claims. Judge Beth Labson Freeman’s final order listed the motions as follows: Skillz Motion No. 1, granted; Skillz Motion No. 2, denied; Skillz Motion No. 3, granted in part and denied in part; Skillz Motion No. 4, granted in part and denied in part; AviaGames Motion No. 1, granted in part and deferred in part; AviaGames Motion No. 2, denied; AviaGames Motion No. 3, deferred; AviaGames Motion No. 4, denied; and AviaGames Motion No. 5, granted in part and deferred in part.