United States District Court, D. Delaware
E.I. DUPONT DE NEMOURS AND COMPANY, Plaintiff,
UNIFRAXI LLC, Defendant.
Richard L. Horwitz, David E. Moore, Bindu A. Palapura,
Stephanie E. O'Byrne, POTTER ANDERSON & CORROON LLP,
Wilmington, Delaware; Mark L. Levine, Christopher D.
Landgraff, Christopher R. Hagale, Sharon Desh, BARTLIT BECK
HERMAN PALENCHAR & SCOTT LLP, Chicago, Illinois.
Attorneys for Plaintiff
Frederick L. Cottrell, III, Kelly E. Farnan, Jason J.
Rawnsley, Katharine L. Mowery, RICHARDS, LAYTON & FINGER,
P.A., Wilmington, Delaware; Joseph G. Curatolo, Salvatore A.
Sidoti, CURATOLO SIDOTI CO. L.P.A., Cleveland, Ohio; Jake M.
Holdreith, David A. Prange, Alyssa N. Lawson, Brenda L. Joly,
Emily E. Niles, George Ashenmacher, ROBINS KAPLAN LLP,
Minneapolis, Minnesota. Attorneys for Defendant
memorandum addresses Defendant Unifrax I LLC's Renewed
Motions for Judgment as a Matter of Law ("JMOL")
that the Asserted Patent Claims are not Infringed or Invalid
and, in the Alternative, For a New Trial. (D.I. 366) I have
reviewed the briefing for these motions. (D.I. 370; D.I. 375;
Judgment as a Matter of Law
as a matter of law is appropriate if "the court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis to find for [a] party" on an issue.
Fed.R.Civ.P. 50(a)(1). "Entry of judgment as a matter of
law is a 'sparingly' invoked remedy, granted only if,
viewing the evidence in the light most favorable to the
nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from
which a jury reasonably could find liability." Marra
v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)
assessing the sufficiency of the evidence, the Court must
give the nonmovant, "as [the] verdict winner, the
benefit of all logical inferences that could be drawn from
the evidence presented, resolve all conflicts in the evidence
in his favor and, in general, view the record in the light
most favorable to him." Williamson v. Consol. Rail
Corp., 926 F.2d 1344, 1348 (3d Cir. 1991). The Court may
"not determine the credibility of the witnesses [nor]
substitute its choice for that of the jury between
conflicting elements in the evidence." Perkin-Elmer
Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed.
Cir. 1984). Rather, the Court must determine whether the
evidence reasonably supports the jury's verdict. See
Gomez v. Allegheny Health Servs. Inc., 71 F.3d 1079,
1083 (3d Cir. 1995); 9B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2524
(3d ed. 2008) ("The question is not whether there is
literally no evidence supporting the party against whom the
motion is directed but whether there is evidence upon which
the jury might reasonably find a verdict for that
the movant bears the burden of proof, the Third Circuit
applies a stricter standard. Fireman's Fund Ins. Co.
v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976).
To grant judgment as a matter of law in favor of a party that
bears the burden of proof on an issue, the Court "must
be able to say not only that there is sufficient evidence to
support the [movant's proposed] finding, even though
other evidence could support as well a contrary finding, but
additionally that there is insufficient evidence for
permitting any different finding." Id.
Rule of Civil Procedure 59(a)(1)(A) provides, in pertinent
part: "The court may, on motion, grant a new trial on
all or some of the issues-and to any party- . . . after a
jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal
court...." Among the most common reasons for granting a
new trial are: (1) the jury's verdict is against the
clear weight of the evidence, and a new trial must be granted
to prevent a miscarriage of justice; (2) newly discovered
evidence exists that would likely alter the outcome of the
trial; (3) improper conduct by an attorney or the court
unfairly influenced the verdict; or (4) the jury's
verdict was facially inconsistent. See Zarow-Smith v.
N.J. Transit Rail Operations, Inc., 953 F.Supp. 581,
584-85 (D.N.J. 1997).
decision to grant or deny a new trial is committed to the
sound discretion of the district court. Allied Chem.
Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980);
Olefins Trading, Inc. v. Han Yang Chem Corp., 9 F.3d
282, 289 (3d Cir. 1993). Although the standard for granting a
new trial is less rigorous than the standard for granting
judgment as a matter of law-in that the Court need not view
the evidence in the light most favorable to the verdict
winner-a new trial should only be granted where "a
miscarriage of justice would result if the verdict were to
stand" or where the verdict "cries out to be
overturned" or "shocks [the] conscience."
Williamson, 926 F.2d at 1352-53.
Judgment as a Matter of Law of Non-Infringement
argues that the accused product, 3G11, contains "carrier
material" because (1) it includes polydimethylsiloxane
("PDMS"), an organic silicone-based polymer
additive, or (2) the refractory layer of 3G11 has silane.
Sufficient evidence supports a finding that the PDMS present
in 3G11 is not a carrier. (See, e.g., PTX-22; Tr.
1483:11-14, 1226:20-1227:1, 697:18-699:4, 1241:24-1242:15).
Sufficient evidence supports a finding that silane is not a
carrier. (See, e.g., Tr. 633:12-634:20,
makes the new claim construction argument that if a material
serves more than one function, such as, as both a dispersant
and a carrier, then that material would count towards the
"100% by weight" limitation because it qualifies as
a carrier. Defendant did not argue this specific issue in its
claim construction briefing. (See generally D.I.
74). Defendant had numerous opportunities to raise this
specific issue prior to trial, but Defendant did not do so.
Indeed during summary judgment arguments, Defendant
represented that "the correct claim construction is the
one the Court gave which is there cannot be resin or adhesive
in the vermiculite." (D.I. 282, 26:10-17). I do not
understand Defendant's citations at D.I. 370, page 34,
footnote 17 to amount to an adequate request for additional
claim construction of this issue. Defendant did not preserve
this specific argument as a basis for JMOL at trial either.
Thus, this argument is waived. See, e.g., LG Elecs.
U.S.A., Inc. v. Whirlpool Corp., 798 F.Supp.2d 541, 551
(D. Del. 2011) ("A party dissatisfied with a jury
verdict may not prevail on a post-verdict motion for JMOL
based on grounds not raised in the pre-verdict motion for
JMOL."); Duro-Last, Inc. v. Custom Seal, Inc.,
321 F.3d 1098, 1107 (Fed. Cir. 2003) ("[I]t would be
constitutionally impermissible for the district court to
re-examine the jury's verdict and to enter JMOL on
grounds not raised in the pre-verdict JMOL."). Even if
it were not waived, I think Defendant's new construction
is an overly broad interpretation of what counts towards the
100% by weight limitation. Defendant's new construction
seems to contemplate that even residual dispersants
could count towards this limitation. See Kaneka Corp. v.
Xiamen Kingdomway Grp. Co., 790 F.3d 1298, 1304 (Fed.
Cir. 2015) ("A claim construction that excludes a
preferred embodiment is 'rarely, if ever,
correct.'"). For the reasons given in my Markman
opinion, that cannot be the correct reading. (See,
e.g., D.I. 86 at p. 14 (noting that the specification
provides that "[t]he refractory layer may comprise some
residual dispersant arising from incomplete drying of the
platelet dispersion during manufacture")).
also argues that the construction given for the "capable
of activation" limitation is improper. For the reasons
provided in my construction of this limitation, I disagree.
Judgment as a Matter of Law of Invalidity
argues that no reasonable jury could find that FyreWrap
Combi-Film 3G7 product does not anticipate the asserted
claims. There is sufficient evidence to support a finding
that it does not anticipate. (See, e.g., Tr.
230:20-231:1, 280:6-282:4, 276:5-12, 266:5-267:7,
267:19-268:3, 269:1-12, 349:11-352:5; 443:16-24,
440:24-442:5, 445:17-23, 448:12-21, 449:20-450:14,
459:22-460:2, 461:22-462:4, 468:5-9, 472:10-24, 481:14-482:8,
439:9-20, 476:16-477:20; PTX46; PTX-54; PTX-74; PTX-75;
PTX-125; PTX-148; PTX-161; PTX-163; PTX-169; PTX-59; PTX-143;
DTX-100; DTX-115; PTX-126; PTX-127; PTX-132).
argues that no reasonable jury could find that the Mormont
reference does not anticipate or render obvious the asserted
claims. There is sufficient evidence to support a finding
that it does not anticipate or render obvious the asserted
claims. (See, e.g., DTX-114 at ¶¶ 33,
74;Tr. 1218:13-18, 1480:17-21, 1480:24-1481:5, 1479:1-3,