The return of Juicy Whip vs. Orange Bang

Following the decision in Juicy Whip, Inc. v. Orange Bang, Inc., 292 F.3d 728 (Fed. Cir. 2002), a jury awarded Juicy Whip compensatory damages totaling $643,379.75. In a return visit to the CAFC, Juicy Whip appealed from the district court’s decision denying its claim for lost profits and requested reassignment of the case to a new judge.

Of the lost profits issue, Juicy Whip argued that the district court erred by denying it the opportunity to present to the jury its theory of lost profits from lost syrup sales. It claims that there exists a functional relationship between the PATENTED dispenser and the UNPATENTED syrup, a link adequate to justify recovery of lost profits. Orange Bang responds that Juicy Whip has not shown sufficient proof of such a functional relationship between the two items and that, because the two items are capable of use independently of each other, Juicy Whip should not be permitted to recover damages from syrup sales.

The CAFC noted: The dispenser and the syrup are in fact analogous to parts of a single assembly or a complete machine, as the syrup functions together with the dispenser to produce the visual appearance that is central to Juicy Whip’s ’405 patent. Despite some limited interchangeability—other syrups may be used in Juicy Whip’s dispenser and, likewise, other dispensers could use Juicy Whip’s syrups—the two items do “function together to achieve one result,” Rite Hite, 56 F.3d at 1551. The dispenser needs syrup and the syrup is mixed in a dispenser. Such is indeed a functional relationship, and a functional relationship between a patented device and an unpatented material used with it is not precluded by the fact that the device can be used with other materials or that the unpatented material can be used with other devices. We therefore conclude that the district court erred as a matter of law by denying Juicy Whip the opportunity to present to the jury evidence for its theory of lost profits on lost syrup sales. Accordingly, we vacate the jury’s award of a reasonable royalty and remand this sticky issue for further proceedings to allow Juicy Whip to prove lost profits on its syrup sales.

--> Isn't there some kind of antitrust issue here?

Of the judge issue, Juicy Whip requested that the case be reassigned to a different district court judge, alleging that the judge “continues to view Juicy Whip’s invention with disdain and is punishing Juicy Whip as a result.” Appellant’s Opening Br. at 40. Juicy Whip cites passages from various opinions issued by the district court that it claims are indicative that the court may have “substantial difficulty putting out of its mind its view that the ’405 invention lacks utility and/or is unimportant.” Id. at 43. Orange Bang responds simply that there are insufficient grounds to require reassignment.
We agree with Orange Bang that reassignment to a different judge is not warranted in this case. Juicy Whip does not assert personal bias and has not shown adequate reason to merit the unusual remedy of reassignment. We cannot say, based on the few excerpts cited by Juicy Whip in view of the entire lifetime of this litigation spanning nearly seven years, that the district court judge has demonstrated such irreversibly firm views that the case requires reassignment or that such action is necessary to preserve the appearance of justice. The district court judge is quite familiar with the parties and the issues, and reassignment would only result in a waste of judicial resources. Because “[s]uch unusual circumstances rarely exist” to justify reassignment, Glen Holly Entm’t, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1017 (9th Cir. 2003), and because we do not believe that this is such a case, we decline to reassign the case on remand.