United States District Court, D. Delaware
W.L. GORE & ASSOCIATES, INC., Plaintiff,
C.R. BARD, INC., and BARD PERIPHERAL VASCULAR, INC., Defendants.
LEONARD P. STARK UNITED STATES DISTRICT COURT.
Wilmington this 20th day of
September, 2017, having reviewed Plaintiff
W.L. Gore & Associates, Inc.'s ("Gore")
Unopposed Motion for JMOL or Vacatur on Invalidity (D.I.
812), and the related submissions (D.I. 813,
814, 815), IT IS HEREBY ORDERED that the
motion (D.I. 812) is DENIED, for the reasons
filed this patent infringement suit against C.R. Bard, Inc.
and Bard Peripheral Vascular, Inc. ("Bard") in June
2011. (D.I. 1) During the course of highly-contentious
litigation, managed both by Chief Judge Stark and Magistrate
Judge Burke, the Court addressed numerous motions - including
for summary judgment, preclusion of expert testimony, and
sanctions - and issued more than a dozen Reports and
Recommendation, opinions, and memorandum orders (see,
e.g., D.I. 404, 411, 473, 491, 620, 622, 710, 711, 729).
Eventually, in February and March, 2017, a jury was brought
in and the Court held a six-day trial. (See D.I.
800-06) The jury returned a verdict in favor of Bard on all
issues put before it - including, as is most pertinent to the
pending motion, by finding of invalidity of the
patent-in-suit, U.S. Patent No. 5, 735, 892 ("'892
patent"). (D.I. 779) The jury found by clear and
convincing evidence that asserted claims of the '892
patent were invalid due to anticipation, obviousness, and
improper inventorship. (See id.) After receiving a
series of joint status reports (see, e.g., D.I. 790,
792, 796, 799, 808, 811) and conducting several status
teleconferences (see, e.g., D.I. 810, 819), the
parties recently advised the Court that they have settled
July 28, 2017, Gore filed its motion for judgment as a matter
of law ("JMOL") or vacatur of the jury's
finding of invalidity of the '892 patent. (D.I. 812) As
part of the parties' settlement agreement, Bard does not
oppose the motion. (D.I. 814)
its motion, Gore principally argues that the jury's
verdict is not supported by substantial evidence and that
JMOL of no invalidity is therefore proper under Fed.R.Civ.P.
50(b). The Court disagrees. Taking the evidence in the light
most favorable to Bard, as the verdict winner, and drawing
all inferences in favor of Bard, the Court concludes that a
reasonable jury could have found clear and convincing
evidence that the '892 patent was invalid due to
anticipation, obviousness, and improper inventorship.
Gore recognizes (see D.I. 814 at 10-11), to prevail
on JMOL after losing a jury trial, Gore "must show that
the jury's findings, presumed or express, are not
supported by substantial evidence or, if they were, that the
logical;conclusion(s) implied [by] the jury's verdict
cannot in law be supported by those findings." Pannu
v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998).
The Court must give the verdict winner "the benefit of
all logical inferences that could be drawn from the evidence
presented, resolve all conflicts in the evidence in [its]
favor and, in general, view the record in the light most
favorable to [it]." Williamson v. Consol. Rail
Corp., 926 F.2d 1344, 1348 (3d Cir. 1991). Gore
simply has not met these high burdens. Notwithstanding the
lack of opposition to the JMOL motion, the Court must
nonetheless apply the same legal standards, and the lack of
opposition does nothing to erase the substantial evidence
that was presented at trial, and which fully justifies the
connection with summary judgment, as well as JMOL motions
filed during trial, the Court determined that genuine
disputes of material fact precluded the relief sought at
those earlier stages, and nothing in Gore's brief
persuades the Court that JMOL or other relief is warranted
now. As the Court explained during trial: "the record is
replete with genuine disputes of material fact.... Therefore,
I think a reasonable juror could find for either side on
basically all of these [issues]." (D.I. 806 at 1590-91)
Also, prior to trial, the Court had denied Gore's motion
for summary judgment of no anticipation (D.I. 226) with
respect to the Vallbracht materials, stating "the fact
finder could conclude that by clear and convincing evidence,
Bard has demonstrated that a person of ordinary skill in the
art would understand [the Vallbracht patent's] use of
'very thin' ... to anticipate the claimed
range." (D.I. 428 at 26; adopted at D.I. 474) Again,
Gore has not persuaded the Court that its resolution of
Gore's post-trial JMOL motion should differ.
also argues that its requested relief should be granted as a
matter of equity and court practice. Again the Court
Courts considering similar requests to vacate have identified
several pertinent considerations, including: "(1) the
public interest in the orderly operation of the federal
judicial system; (2) the parties' desire to avoid any
potential preclusive effect; (3) the court's resources
that will be expended if the case continues; and (4) the
parties' interest in conserving their resources."
Cisco Sys., Inc. v. Telcordia Techs., Inc., 590
F.Supp.2d 828, 830 (E.D. Tex. 2008); see also Alltech
Assocs. Inc. v. Teledyne Instruments Inc., C.A. No.
13-425-RGA (D. Del. Feb. 12, 2015) (citing Cisco and
assuming applicable standard requires exceptional
circumstances to vacate claim construction); Lycos, Inc.
v. Blockbuster, Inc., 2010 WL 5437226, at *3 (D. Mass.
Dec. 23, 2010) (citing Cisco and applying similar
factors). Application of these factors supports the
public interest in the orderly operation of the federal
judicial system disfavors vacatur here. The "orderly
operation" of a patent litigation includes pretrial
motions practice (though not always as extensive as that
which marked the instant case) and trial. When parties
vigorously dispute issues relating to the validity of a
patent, requiring the substantial expenditure of resources by
the parties, the Court, and ultimately jury to resolve, it
will usually be inefficient and contrary to the orderly
operation of the judicial system to treat the jury's
verdict effectively as a nullity by vacating a verdict
supported by substantial evidence. See generally
Devore v. City of Philadelphia, 2003 WL 21961975, at
*3 (E.D. Pa. June 24, 2003) (denying unopposed Rule 60 motion
seeking relief from jury verdict upon settlement, explaining
that "not only does society have an interest in the
judgments, but so do the eight citizens of the Commonwealth
who dedicated eight days of their liyes to the consideration
of this case").
Moreover, the public has an interest in invalidating patents
that cannot survive a validity challenge. See, e.g.,
Cardinal Chem. Co. v. Morton Int 'l, Inc., 508 U.S.
83, 100-02 (1993) (disapproving "Federal Circuit's
[past] practice of routinely vacating judgments of validity
after finding noninfringement" because of potential for
relitigation and imposition of "ongoing burdens on
competitors who are convinced that a patent has been
correctly found invalid"). Although the '892 patent
has expired - arid, thus, this case does not pose the
potential of an invalid patent being asserted against another
accused infringer - the public interest in invalidating
patents that cannot survive a validity challenge certainly
does not favor the relief sought by Gore. See Ohio Willow
Wood Co. v. Thermo-Ply, Inc., 629 F.3d 1374, 1376 (Fed.
Cir. 2011) (Moore, J., concurring) ("The [Supreme] Court
made clear that vacatur was an extraordinary remedy which
petitioner would have to show equitable entitlement to. Only
in exceptional circumstances should a district court grant
vacatur at the request of the litigants.... In a patent case,
especially where a patent has been invalidated, the public
interest is overwhelming.") (internal quotation marks
and citations omitted).
There is, of course, a strong public interest in promoting
settlement of litigation. See, e.g., Hemstreet v.
Spiegel, Inc., 851 F.2d 348, 350 (Fed. Cir. 1988)
("The law strongly favors settlement of litigation
...."). However, under the totality of the circumstances
presented here, the public interest in the orderly operation
of the federal judicial system disfavors vacatur.
second Cisco factor, the parties' desire to
avoid any potential preclusive effect, does not appear to be
relevant, given the expiration of the '892 patent. Nor do
the other Cisco factors appear to be relevant. As
there is no indication that the parties' settlement is
contingent on the Court's granting the JMOL motion, it is
unlikely that the Court's ruling (whatever it would be)
could lead to any greater expenditure of the Court's or
the parties' resources.
addition to Rule 50(b), Gore's motion also references
Fed.R.Civ.P. 59(a) and 60(b). (See, e.g., D.I. 814
at 11) These latter Rules authorize the Court to exercise its
discretion to provide post-trial relief, under a standard
that is "less rigorous" than the JMOL standard -
"in that the Court need not view the evidence in the
light most favorable to the verdict winner, "
Ateliers de la Haute-Garonne v. Broetje Automation-USA
Inc.,85 F.Supp.3d 768, 776 (D. Del. 2015) (Rule 59(a))
- or under "exceptional circumstances, " including
the interests of the parties, public interest in the
development of the law, promotion of settlement, and the
integrity of the judicial system. See, e.g., Hospira,
Inc. v. Sandoz Inc, 2014 WL 794589, at *5 (D.N.J. Feb.
27, 2014); McKinney v. Philadelphia Hous. Auth.,
2010 WL 2510382, at *4 (E.D. Pa. June 16, 2010). Exceptional
circumstances are not present here and the Court sees no
basis to exercise its discretion to vacate the jury's
finding that was, as already described, supported by
substantial evidence. See, e.g., ...