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October 2, 2008

Rogue Outfit

In John Hopkins University v. Datascope, Judge Newman fingered the overbearing injudiciousness of the Court of Appeals panel in which she sat:

There is no sufficient ground for this court's independent appellate trial of the factual issues that were decided by the jury and sustained by the district court.

John Hopkins University and Arrow International v. Datascope (CAFC 2007-1530)

John Hopkins University and exclusive licensee Arrow International sued Datascope for infringing 5,766,191; 6,824,551; and 7,108,704, claiming "methods for mechanically fragmenting blood clots, particularly thrombus material occluding synthetic vascular grafts."

Trial court found the patents infringed by jury verdict, which the judge refused to throw out. Datascope appealed. Note the appeal review standard caveat of "without weighing the evidence or considering the credibility of the witnesses."

We review the denial of JMOL without deference by applying the JMOL standard used by the district court. BBA Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC, 303 F.3d 1332, 1336 (Fed. Cir. 2002). In the Fourth Circuit, "a motion for judgment as a matter of law should be granted if a district court determines, without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury's findings." Id.

2-1, in an opinion by District Judge Zobel, joined by Judge Schall, the infringement verdict was overturned. As fictional detectives practicing a parody of jurisprudence, the majority crawled through factual evidence to then construe it as a matter of law.

The factual dispute was the degree of contact for the claimed device. The majority accepted an expert's (Valji) facts as true, but not his opinion. And so the majority panel drew its own conclusions.

In reviewing the district court's denial of JMOL, we must "assume that testimony in favor of the non-moving party is credible, unless totally incredible on its face . . . ." Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (internal quotation marks and citation omitted). Here, accepting as true Valji's factual testimony, that the ProLumen device at all times after deployment only contacts the inner lumen at two points, his opinion that it remains in contact with the inner lumen in three dimensions along its length and width is incredible because it is impossible for use of this device to meet this limitation. As a matter of geometry, the two points of contact of the ProLumen S-wire can describe a two-dimensional plane along the length of the lumen, but cannot contact the inner lumen in three dimensions as required by the district court's claim construction. We therefore do not accept Valji's opinion in deciding whether substantial evidence exists to support the jury's finding of infringement. See Wechsler v. Macke Int'l Trade, Inc., 486 F.3d 1286, 1294 (Fed. Cir. 2007) (expert opinion contrary to the factual evidence need not be credited).

Substantial evidence is "more than a mere scintilla" and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1353 (Fed. Cir. 2007) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If, "after reviewing all of the evidence in a light most favorable to the prevailing party, this court is convinced that a reasonable jury could not have found in that party's favor, we must reverse the denial of a motion for judgment as a matter of law." Akamai Techs., Inc. v. Cable. & Wireless Internet Servs., Inc., 344 F.3d 1186, 1192 (Fed. Cir. 2003) (citation omitted). We have carefully considered plaintiffs' evidence that the S-wire expands and adjusts to "remain in contact with the inner lumen in three dimensions along its length and width." (Jury Instructions.) Here, no reasonable jury could have found that the ProLumen device literally met this limitation based on Valji's opinion, given his contradictory testimony that the device only contacts the vessel in two places.3 See Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir.2003) (holding that verdict of literal infringement was unsupported by substantial evidence because the accused device did not perform the required function as defined in the jury instruction). The district court's denial of JMOL on the issue of infringement was, therefore, in error.

3This is not to say that the jury in this case necessarily acted unreasonably.

To recap: no reasonable jury could have agreed with the jury, but "this is not to say that the jury in this case necessarily acted unreasonably." Two judges simultaneously talking out of both sides of their mouths. Surely the Olympics is missing an event.

Judge Newman in dissent -

I respectfully dissent, for substantial evidence supported the jury verdict, as was recognized by the district court in denying judgment as a matter of law. My respected colleagues on this panel have not shown the absence of such evidence; indeed, they appear to recognize that it was present. There is no sufficient ground for this court's independent appellate trial of the factual issues that were decided by the jury and sustained by the district court.

In reviewing a jury verdict, the court must draw all reasonable inferences in favor of the verdict, without making credibility determinations and without reweighing the evidence. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) ("although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe."). When reviewing a jury verdict, it is impermissible for the appellate court to substitute its own findings based on the evidence that was before the jury, for "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

[I]t is not our province to reweigh the evidence, when there was substantial evidence by which a reasonable jury could have reached its verdict. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35 (1944) ("Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn difference inferences or conclusions or because judges feel that other results are more reasonable."); DMI, Inc. v. Deere & Co., 802 F.2d 421, 427 (Fed. Cir. 1986) ("When . . . there are conflicting elements in the evidence, neither the trial court on JNOV nor this court may substitute its choice for that of the jury.").

As the district court explained, a reasonable jury could have reached the verdict of infringement.

Posted by Patent Hawk at October 2, 2008 3:41 PM | Case Law


Newman is on target in her dissent. The majority's discussion of why there is no "substantial evidence" to support the jury verdict of infringement and district court judge's denial of JMOL is so terse as to be almost non-existent. The best you can say for the majority's support for no "substantial evidence" is that they disagreed with the opinion of one of the patentee's experts; that's not a basis for overturning a jury verdict/denial of JMOL. This is a situation ripe for a request for rehearing.

Posted by: EG at October 3, 2008 7:06 AM

Let's hope J. Newman lives forever.

Posted by: JD at October 3, 2008 8:35 AM

Let's hope Judge Newman makes it to the Supreme Court, sooner than later.

Posted by: Patent Hawk at October 3, 2008 8:37 AM