Docket No. 2013-1451
PROST, TARANTO, CHEN
July 14, 2014
Brief Summary: Post-trial motion for JMOL (FRCP 50(b)) denied because sufficiency of evidence must be challenged before submission to the jury under FRCP 50(a). Motion for new trial granted, however, as 50(a) does not apply. JMOL of no unjust enrichment affirmed.
Summary: Medisim appealed DC grant of JMOL to BestMed that US 7,597,688 related to a non-invasive thermometer (e.g., on the skin) is anticipated by Medisim’s own prior art (its FHT-1 thermometer sold more than a year before the ‘688 filing date) and unjust enrichment. In front of the DC, BestMed argued against Medisim’s motion for JMOL of no anticipation by stating that it was “definitely something for the jury” and moved for JMOL of no unjust enrichment. The jury found the ‘688 patent not invalid and infringed, and awarded Medisim $1.2 million in patent infringement damages and $2.29 million for unjust enrichment. BestMed then moved for JMOL of anticipation and no unjust enrichment. The DC granted both motions, conditioning the new trial regarding anticipation on an appeals court determining whether BestMed preserved its right to bring a post-trial JMOL. FRCP 50(a) allows a party to challenge the sufficiency of evidence prior to submission to a jury. FRCP 50(b) allows the party to request JMOL after the jury verdict. The party only has the right to move under 50(b) after the jury verdict if he has properly moved under 50(a) before the evidence is submitted to the jury. The FC determined BestMed had forfeited its right to move under 50(b) regarding anticipation because it failed to move under 50(a) based in part on its comment regarding anticipation being “definitely something for the jury”. However, it did affirm the request for a new trial as a motion under 50(a) is not required for that request and the court did not abuse its discretion as “the district court provided a detailed explanation as to why it found that BestMed had proven anticipation.” The FC also concluded that BestMed did not forfeit its right to JMOL on unjust enrichment because it did first move under 50(a). It also found the decision of no unjust enrichment correct because, althoughthe parties had worked together and had contracts relating to the technology at issue, “Medisim failed to present any evidence to support a finding that BestMed received an incremental benefit from Medisim’s allegedly proprietary water bath testing procedure over that compensable by the patent laws” and “offered no evidence to show why BestMed had reason to think Medisim’s procedures…were confidential or otherwise proprietary.”