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Green Mountain Glass LLC v. Saint-Gobain Containers Inc.

United States District Court, D. Delaware

March 8, 2018

GREEN MOUNTAIN GLASS LLC & CULCHROME, LLC Plaintiffs,
v.
SAINT-GOBAIN CONTAINERS, INC., d/b/a VERALLIA NORTH AMERICA Defendant.

          MEMORANDUM

         I. INTRODUCTION [1]

         In this patent infringement action, Plaintiffs Green Mountain Glass LLC, and CulChrome, LLC (collectively, "Plaintiffs") allege that Saint-Gobain Containers, Inc., d/b/a/ Verallia North America, now known as "Ardagh" ("Defendant") infringes U.S. Patent Nos. 5, 718, 737 ("the '737 Patent") and 6, 230, 521 ("the '521 Patent"). (D.I. I.)[2] The court held a five-day jury trial in this matter on April 17 through April 21, 2017. (D.I. 268-272.) At trial, Defendant properly moved for judgment as a matter of law ("JMOL") at the end of Plaintiffs' case pursuant to Rule 50(a) of the Federal Rules of Civil Procedure and again at the close of evidence. Tr. 687:8-17; 1200:14-21.[3]

         On April 21, 2017, the jury returned a verdict in favor of Plaintiffs on the issue of infringement with respect to all claims of the '737 Patent. Tr. 1374:15-25, 1376:1-25; (D.I. 240.) The jury found that Defendant willfully infringed claims 1, 18, 20, 21, 22, and 24 of the '737 Patent, but that Defendant did not infringe the '521 Patent. Id. The jury also found that the claims of the '737 Patent were valid, not obvious, and not anticipated by the prior art. Id. The court entered judgment on the verdict on April 26, 2017. (D.I. 242.)

         Presently before the court is Defendant's motion for judgment as a matter of law or alternatively for a new trial on the issues of infringement and willful infringement and Plaintiffs' motions for prejudgment interest, attorney's fees, enhanced damages, and, alternatively, a new trial. (D.I. 248); (D.I. 251.) Having considered the entire record in this case, the substantial evidence in the record, the parties' post-trial submissions, and the applicable law, the court will grant Plaintiffs' motion for prejudgment interest and deny all other motions.[4] The court's reasoning follows.

         II. BACKGROUND OF THE TECHNOLOGY

         The patents-in-suit relate to a method of recycling batches of mixed colored cullet[5] into amber, green, or flint glass by selectively decolorizing the color green from the mixed colored cullet and then colorizing the mixed colored cullet. '737 Patent. The technology described in the patents-in-suit includes efforts to turn a waste product of glass recycling of unsorted mixed colored glass cullet into a product useful to glass manufacturers. Id. At trial, the main focus of both the parties' invalidity and infringement arguments focused on the requirement, appearing in one form or another in each of the asserted claims, that the colors "of said . . . cullet" are or are not "selectively colorized." Id. at Claims 1, 18.

         III. STANDARD OF REVIEW

         A. Renewed JMOL Motions

         To prevail on a renewed motion for judgment as a matter of law following a jury trial and verdict, the moving party "must show that the jury's findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal 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) (quoting Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed. Cir. 1984)). "Substantial evidence" is defined as "such relevant evidence from the record taken as a whole as might be accepted by a reasonable mind as adequate to support the finding under review." Perkin-Elmer Corp., 732 F.2d at 893.

         The court should only grant the motion "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." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993)). "In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." Lightning Lube, 4 F.3d at 1166 (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir. 1992)). Rather, the court must resolve all conflicts of evidence in favor of the non-movant. Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); Perkin-Elmer Corp., 732 F.2d at 893.

         "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 could properly find a verdict for that party." Lightning Lube, 4 F.3d at 1166 (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).

         B. New Trial

         Pursuant to Federal Rule of Civil Procedure 59, a court may grant a new trial "for any of the reasons for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). The decision to grant or deny a new trial is within the sound discretion of the trial court. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). In making this determination, the trial judge should consider the overall setting of the trial, the character of the evidence, and the complexity or simplicity of the legal principles which the jury had to apply to the facts. Lind v. Schenley Indus., Inc., 278 F.2d 79, 89 (3d Cir. 1960). Unlike the standard for determining judgment as a matter of law, the court need not view the evidence in the light most favorable to the verdict winner. Allied Chem. Corp., 449 U.S. at 36. A court should grant a new trial in a jury case, however, only if "the verdict was against the weight of the evidence . . . [and] a miscarriage of justice would result if the verdict were to stand." Consol. Rail Corp., 926 F.2d at 1352.

         Similarly, Federal Rule of Civil Procedure 60 permits a court to relieve a party from final judgment and even grant a new trial due to "fraud . . ., misrepresentation, or other misconduct by an adverse party." Fed.R.Civ.P. 60(b)(3); see Bethel v. McAllister Bros., Inc., 81 F.3d 376, 384-85 (3d Cir. 1996). In order to prevail on a Rule 60 motion, the movant must show that the adverse party engaged in fraud or other misconduct, and this conduct prevented the movant from fully and fairly presenting his case. Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983). Additionally, the movant must demonstrate that the fraud or misrepresentation was material to the outcome of the case. Bandai Am. Inc. v. Bally Midway Mfg. Co., 775 F.2d 70, 73 (3d Cir. 1985). Fraud or misrepresentation must be proved by clear and convincing evidence. See Brown v. Pennsylvania R.R. Co., 282 F.2d 522, 527 (3d Cir. 1960).

         IV. DISCUSSION

         Having considered the substantial evidence in the record, the parties' post-trial submissions, and the applicable law, the court will deny all of Defendant's motions. The court will deny Plaintiffs' motions for enhanced damages, attorney's fees, and a new trial and grant Plaintiffs' motion for prejudgment interest. The court's reasoning follows.

         A. Infringement

         First, Defendant moves for judgment as a matter of law or, alternatively, a new trial on infringement. (D.I. 249.) Defendant's sole challenge to the jury's infringement verdict is that Plaintiffs "failed to prove that it 'selectively decolorized' one of the colors of the unsorted mixed color cullet, which is a required element of every asserted claim." (D.I. 249 at 3.)[6] Both of the asserted independent claims, 1 and 18, require "selectively" decolorizing and enhancing "at least one of the colors of said unsorted mixed color glass cullet." '737 Patent at Claims 1, 18. Thus, to infringe, Defendant must use colorizers or decolorizers in a selective way to remove and enhance only a particular color cullet. (D.I. 249 at 3.) Defendant argues that there is no evidence in the record that its glassmaking process selectively uses decolorizers or colorizers to act on the cullet. Id. at 3-4. Specifically, Defendant argues that the evidence only shows that it used the same colorizers and decolorizers that are well-known in the prior art, that these colorizers and decolorizers acted on all colors in all materials in the batch as a whole, and were not selective. Tr. 263:4-264; 265:10-266.

         Plaintiffs assert that they presented substantial evidence "through exhibits, fact, and expert testimony, " which provided the jury reasonable grounds to find that Defendant infringed all asserted claims of the '737 Patent. (D.I. 260 at 3-4.) The court agrees. Plaintiffs' expert, Dr. Steve Martin, testified extensively as to Defendant's infringement finding that "all of the steps [of the independent claims asserted] have been practiced by [Defendant's accused methods." (D.I. 260 at 4); Tr. 400:24-433; 424:2-3.[7] While Dr. Martin's testimony alone provided a sufficient basis for a reasonable jury to find Defendant infringed the '737 Patent, Plaintiffs submitted considerable additional evidence. (D.I. 260 at 4.) For example, Plaintiffs' technical director, Dr. Lehman, testified that Defendant's Manager of Glass Technology told him they used mixed color cullet with colorizers and decolorizers. Tr. 201:1-9. At trial, Plaintiffs presented testimony from Defendant's corporate head, James Keener, who testified that "[Defendant] practiced every limitation of the '737 Patent's independent claims." Tr. 711:22-712:20. The jury also heard evidence about an internal email stating that "[Defendant] would not seek a license on any color control technology because [they] are already" using the technology. DX-134; (D.I. 260 at 4.) Lastly, the court recognized at trial that "asserting a defense of anticipation based on Ardagh's prior public use could seriously undermine the infringement position in the eyes of the jury." Tr. 762:10-15. Despite this warning, Defendant proceeded with their defense. Accordingly, a reasonable jury could have found infringement based on all the aforementioned evidence.

         Defendant argues, alternatively, that the court should grant a new trial on infringement because "Plaintiffs' counsel questioned [Defendant's lay witness Mr. Keener on the claim elements and concluded with [the question] 'you have just proven infringement [....] correct?'" (D.I. 249 at 4); Tr. 711:22-712:22. Despite the court's admonishment of Plaintiffs' counsel and its curative instruction, Plaintiffs' counsel repeated this statement in his closing. Id.; Tr. 713:5-714:9, 1289:18-20. While counsel behaved inappropriately and unprofessionally at this and other times during the trial, after much thought the court believes its curative instructions sufficed to adequately ameliorate the harm caused by counsel. See InterDigital Commc 'ns, Inc. v. ZTE Corp., 2016 WL 1073229 at *5 (D. Del. Mar. 18, 2016). At the time the question was asked, the court told the jury that they were "to disregard [counsel's] question and his comment. It was inappropriate. He has been told about it. And he will not repeat the offense again. But I am directing you to disregard the comment, please." Tr. 714:2-7.[8] In the final jury instructions the court reiterated its point and instructed the jury that they "must completely ignore" all the things during trial they were ordered to disregard and that they must "not speculate about" what a witness or exhibit may have shown because they are not evidence. Tr. 1230:15-23.[9]

         For these reasons, the court will deny Defendant's motion for judgment as a matter of law or, alternatively, for a new trial on the issue of infringement.

         B. Willful Infringement

         Next, Defendant moves for judgment as a matter of law or, alternatively, a new trial on willful infringement. (D.I. 249.) Defendant asserts that Plaintiffs failed to prove willful infringement of the '737 Patent because (1) its glassmaking process predates the '737 Patent's . priority date; (2) it did not use unsorted cullet; and (3) Plaintiffs' actions demonstrate that it did not willfully infringe the '737 Patent. (D.I. 249 at 5.) Generally, a finding of willful infringement should be reserved for "egregious cases of misconduct beyond typical infringement." Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.Ct. 1923, 1935 (2016). Willfulness "is a classical jury question of intent. When trial is had to a jury, the issue should be decided by the jury." WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016). A willful infringer is one "who intentionally infringes another's patents-with no doubts about its validity or any notion of a defense-for no other purpose other than to steal the patentee's business." Halo Elecs., Inc., 126 S.Ct. at 1926.

         1. The Priority Date & Mixed Cullet

         Defendant asserts that because their glassmaking process predated the '737 Patent's priority date, it reasonably believed it could not be liable for infringement. (D.I. 249 at 5.) Defendant further contends that testimony by their former Senior Vice President for Supply Chain, Mr. Rhea, establishes that Defendant's glassmaking process had not materially changed since at least 1986, and the process used mixed color cullet prior to Plaintiffs' patent. Id; Tr. 768:1-11, 771:20-773:13. At his deposition, however, Mr. Rhea also stated that he "can't recall [to] any degree ever reading [the '737 patent], " and was not "aware of any analysis that Ardagh did internally to determine whether or not it was using technology from CulChrome." (D.I. 260 at 10); (D.I. 252 at 10.) Defendant's Senior Vice President of Technical Services, Roger Erb, further said he would be "impress[ed]" if Plaintiffs "could take 50% Green Glass and 50% Amber Glass and successfully make Amber Glass" at the time. (D.I. 260 at 8); (JTX-5.)

         2. The Unsorted Cullet

         Next, Defendant argues that it believed it was not liable for patent infringement because it does not and has not used unsorted cullet. (D.I. 249 at 7.) At trial, the evidence from both Defendant's witnesses and third parties established that Defendant used sorted mixed color cullet before Plaintiffs' patent. Id.[10] Defendant, however, introduced no evidence that anyone "act[ed] on the basis of the defense [of using only sorted cullet] or was even aware of it." (D.I. 260 at 11); Halo Elecs., Inc., 136 S.Ct. at 1933. Specifically, Defendant's assertion that it could not be liable because it only used "sorted" cullet contradicts its prior assertion that it could not be liable because it had been using "mixed color cullet" prior to issuance of the '737 Patent. (D.I. 249 at 5-7.)

         3. Plaintiffs' Actions & Documents

         Among other things, the jury heard evidence on (1) Defendant's deliberate copying, including that, a mere eight days after learning about the patent, Defendant drafted a secret dossier in which it sought information regarding nineteen different aspects about Plaintiffs' technology; (2) Defendant's failure to investigate the scope of the patent or form a good faith belief that it was invalid or not infringed; (3) Defendant's failure to take remedial action, including continued post-suit infringement; and (4) Defendant's attempts to conceal its infringement, including a letter sent to Plaintiffs denying infringement pre-suit and a letter post-suit denying it used "mixed color cullet." Tr. 593:11-15. After considering the evidence, the jury, under a heightened willfulness instruction, found that "Ardagh was especially worthy of punishment." Tr. at ¶ 25O;23-24.[11]

         Other than presenting conflicting testimony from their own experts, Defendant has not demonstrated that a reasonable jury could not have found that it willfully infringed the patent. It is not the court's role to second guess the credibility determinations of the jury. See SIBIA Neuroscis. Inc., v. Cadus Pharms.,225 F.3d 1349, 1355 (Fed. Cir. 2000). For these reasons, the court will deny Defendant's motion for ...


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