Online Customer Reviews to Show Actual Customer Use Not Excluded

The court denied in part defendant's motion in limine to exclude customer product reviews on the internet. "Motion to exclude customer product reviews appearing on the internet to establish actual use of the infringing feature of [defendant's] accused products, on hearsay grounds, is denied with respect to customer comments, provided that Plaintiffs lay a proper foundation and the comments are not offered for their truth of the matters asserted. [Defendant] may request a limiting instruction as to the use of these comments only to show customer use. Plaintiffs may seek permission at trial to use the comments for impeachment purposes, depending upon the evidence presented by [defendant]. The motion is granted with respect to introduction of 'sorting' information to show popularity of the infringing feature."

ABT Systems, LLC, et. al. v. Emerson Climate Technologies, Inc., et. al., 4-11-cv-00374 (MOED February 7, 2013, Order) (Fleissig, J.).