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E.I. Dupont De Nemours and Company v. Unifraxi LLC

United States District Court, D. Delaware

September 12, 2017

E.I. DUPONT DE NEMOURS AND COMPANY, Plaintiff,
v.
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 ORDER

         This 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; D.I. 385).

         I. LEGAL STANDARD

         A. Judgment as a Matter of Law

         Judgment 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) (citation omitted).

         In 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 party.").

         Where 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.

         B. New Trial

         Federal 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).

         The 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.

         II. DISCUSSION

         A. Judgment as a Matter of Law of Non-Infringement

         Defendant 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, 637:16-638:12; PTX-175).

         Defendant 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")).

         Defendant 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. (D.I. 294).

         B. Judgment as a Matter of Law of Invalidity

         Defendant 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).

         Defendant 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, 1485:8-15; PTX-27).

         C. ...


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