Flexuspine, Inc. v. Globus Medical, Inc.

Docket No. 2017-1188, -1189

January 19, 2018

Brief summary: FC panel found DC denial of Globus’s Rule 59(e) and 50(b) to be within its discretion and not abused, and its grant of SJ of noninfringement to be proper.

Summary: Globus appealed DC denial of its Rule 59(e) (to amend the judgment to include the jury’s invalidity verdict) and 50(b) (JMOL on invalidity, dismissed as moot) motions, and Flexuspine appealed DC grant of SJ of noninfringement of US 8,123,810 (but not with respect to two other patents). The FC panel explained that “Rule 59(e) motions…‘serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence’” (Waltman, 5th Cir. 1989 (5th Cir. regional law applied here, for abuse of discretion)). It also found the DC properly exercised its discretion on this point and Globus did not properly object to the DC’s actions. Regarding the Rule 50(b) motion, the FC panel also explained that it reviews DC “decision to dismiss without prejudice an invalidity counterclaim challenging a patent it concludes was not infringed” for an abuse of discretion (Liquid Dynamics, FC 2004). And it again found the DC to be within its discretion, and that “[o]nce the [DC] dismissed Globus’s invalidity counterclaims without prejudice, invalidity was no longer a live issue amenable to being decided as a matter of law”. The DC’s grant of SJ of no infringement was reviewed de novo to determine “if the [Globus] show[ed] that there is no genuine dispute as to any material fact, and [Globus] is entitled to” JMOL. Its grant of SJ was affirmed because “Flexuspine provide[d] no evidence to satisfy th[e second] requirement” of the claims, its expert did not address that point, and the magistrate judge determined “a reasonable jury could not find” infringement (and the DC agreed). And Flexuspine did not dispute that “portion of the order” or “affirmatively or explicitly take issue with” it, “cite to any evidence that might satisfy” that limitation, and “even neglected to address this issue in its reply brief after Globus expressly identified the deficit”. The FC panel therefore affirmed the DC’s grant of SJ.

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