A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: JMOL

Sometimes I wonder what it might have been like to be on a patent jury in 1840. The claim at issue is 12 words, something like "a machine for curing drunkenness through violent shaking, operated by a crank."

(Eds. note - is that a haiku?)

A be-wigged and mustachioed defense lawyer argues that it was really more of a swivel than a crank, and anyways it was well known in the prior art that drunkenness could be cured by shaking the inebriated patient manually, and thus no patent should have issued.

Pictured: Sobriety
Pictured: Sobriety Tadeusz Lakota, Unsplash

The jury nods in agreement at these self-evident truths, and then goes on to deliver a verdict after a brief luncheon of organ meat pies. Justice, like lunch, is served.

Those halcyon days are, of course, long gone as evidenced by Judge Andrews' opinion in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del. May 17, 2024) (Mem. Op.), which dealt with a claim (one of many) that was 424 words long.

The opinion on the various post-trial motion goes into great detail about the difficulties of presenting a coherent trial on such complicated software claims:

Much of the trial testimony on infringement can only be understood, if at all, with great effort. The claims are very long and complicated. For example, claim 1 of the '287 patent is 424 words long. At trial, Express Mobile divided the claims into four parts, which it color-coded as red, green, gold, and blue. The testimony of Plaintiffs technical expert about how Shopify's system worked was intermingled with references to its meeting, e.g., the "red group of limitations." The testimony at times lacked the usual one-to-one correspondence with the specific limitations in the claims, and that combined with the color-coding means that trying to figure out whether there was sufficient evidence to show infringement is difficult.

Id. at 9 (internal citations omitted).

Given that description, I was surprised to see that the patentee had actually prevailed at trial to the tune of $40,000,000. Judge Andrews apparently agreed because he ...

Artist's illustration of one of the parties' briefs.
Artist's illustration of one of the parties' briefs. Carl Tronders, Unsplash

I wanted to call out the interesting quote in the title, which comes from an opinion Judge Noreika issued on Friday granting-in-part post-trial motions in a patent case.

The quote is in the context of a motion for JMOL of no post-suit indirect infringement because the accused infringer didn't encourage users to infringe. The Court was very disappointed in the parties' briefing:

[T]he Court must still address Defendants’ remaining complaint as to indirect infringement. Defendants argue that there was no evidence at trial to suggest that they encourage others to infringe the ’502 and ’386 Patents, which is required for a finding of inducement liability. On this point, …

Bye bye, JMOL motion
Bye bye, JMOL motion Ioana Cristiana, Unsplash

In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.

Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the …

The good (well, better) kind of salad
The good (well, better) kind of salad Go to Ryan Concepcion's profile Ryan Concepcion, Unsplash

JNOV's (JMOL's after a jury verdict for lawyers of a newer vintage) are always longshots. To prevail on such a motion "a party must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusion(s) implied by the jury’s verdict cannot in law be supported by those findings." Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998) (cleaned up). It's always noteworthy (or so we bloggers tell ourselves) when one succeeds.

This is especially true in NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA, D.I. 371 ( …

Disappointment Ice Cream
Sarah Kilian, Unsplash

Back in 2019, the parties in C.R. Bard, Inc. v. AngioDynamics, Inc., C.A. 15-218-JFB-SRF (D. Del.) went to trial on infringement claims for a patent involving a "means of identification" of certain medical devices.

During trial, at the close of plaintiffs' case, visiting Judge Bataillon granted an oral FRCP 50(a) motion for JMOL for the defendant (wow!), finding that the patent was ineligible as directed to an abstract idea involving labeling and printed matter.

The Federal Circuit later reversed, holding that the claims were patent eligible. Defendant then sought rehearing en banc, arguing that the panel's determination that the claims were patent eligible would cut off its ability to present other ineligibility arguments …

Dollar Bills
Sharon McCutcheon, Unsplash

Chief Judge Stark today released his opinion on post-trial motions in Roch Diagnostics Co. v. Meso Scale Diagnostics, LLC, C.A. No. 17-189-LPS (D. Del.), following a jury trial last year that resulted in a $137m verdict and a finding of willfulness.

Damages Award on 65% Royalty Theory Confirmed

The Court denied a post-trial motion to undo the jury's damage finding, which equated to an approximately 65% royalty rate (or more, depending on the royalty base).

Interestingly, the jury awarded damages after a one-sided royalty rate presentation by Roche, the accused infringer. The Court had previously excluded the patentee's damages expert's opinion as to the royalty rate, because it used the wrong date …