CAFC affirms ED Texas in Flexuspine matter

From the decision:


Globus Medical, Inc., appeals the district court’s decision
denying its Rule 59(e) motion and denying as moot
its Rule 50(b) motion. Flexuspine, Inc., cross-appeals
from the district court’s grant of summary judgment of
noninfringement of its U.S. Patent No. 8,123,810 (“’810
patent”). We affirm the district court’s decisions
(1) denying Globus’s Rule 59(e) motion, (2) denying as
moot its Rule 50(b) motion, and (3) granting summary
judgment of noninfringement.



Of the issues:



The district court entered final judgment that Globus
did not infringe any of the asserted claims of the two
remaining patents. The court’s judgment did not address
invalidity of the patents-in-suit. Globus filed a Rule 59(e)
motion requesting that the judgment be amended to
include the jury’s invalidity verdict. Flexuspine opposed.

Globus then filed a Rule 50(b) motion for judgment as a
matter of law on invalidity. Globus argued in support of
the Rule 50(b) motion that given the overwhelming invalidity
evidence presented at trial, judgment as a matter of
law on invalidity was required even if the court denied
Globus’s Rule 59(e) motion. Flexuspine did not file a
response to the Rule 50(b) motion.

The district court denied Globus’s Rule 59(e) motion.
The court also dismissed Globus’s invalidity counterclaims
without prejudice and so denied as moot its Rule
50(b) motion. Globus appeals. Flexuspine cross-appeals
from the district court’s pre-trial order granting summary
judgment of no infringement on the ’810 patent. Flexuspine
does not appeal the judgment of noninfringement
of the other two patents-in-suit.


Of the jury


First, Globus argues that the district court was not
authorized to direct the jury to further consider its answers
and verdict because the jury’s first answers were
not inconsistent with each other. Globus maintains that
the fact that the jury overlooked the stop instructions was
not sufficient to render the verdict internally inconsistent.
We disagree.
In White v. Grinfas, 809 F.2d 1157 (5th Cir. 1987),
like here, the problem with the verdict “was caused by the
jury’s failure to follow the court’s instructions.” 809 F.2d
at 1161. In that case, the jury was directed to answer
questions following question 3 only if it answered “yes” to
that question. The jury answered “no” to that question
but continued to answer further questions, ignoring the
court’s instructions. The Fifth Circuit observed that
“[b]ecause all the questions subsequent to question 3 were
predicated on an affirmative response to that question,
the subsequent answers had to conflict with the [“no”]
answer to question 3, regardless of whether they were
also in conflict with each other.” Id. (emphasis added).
Accordingly, under Fifth Circuit law, a jury answering
questions in violation of a stop instruction is sufficient to
render the verdict internally inconsistent.



Of interest:



We conclude that the district court was within its discretion
to dismiss Globus’s invalidity counterclaims
without prejudice. This court has expressly held that “[a]
district court judge faced with an invalidity counterclaim
challenging a patent that it concludes was not infringed
may either hear the claim or dismiss it without prejudice.”
Id. (citing Nystrom v. TREX Co., 339 F.3d 1347,
1351 (Fed. Cir. 2003)). Globus is correct that a district
court is typically faced with a live invalidity counterclaim
only after the court grants summary judgment of noninfringement
and that its discretion to dismiss invalidity
counterclaims at later stages in the proceedings may be
more limited.2 Under the specific circumstances here,
however—where the district court clarified that Globus’s
invalidity counterclaims were not submitted to the jury
and Globus waived its right during the trial to have the
jury consider those claims—it was within the district
court’s discretion to dismiss Globus’s counterclaims
without prejudice.

Once the district court dismissed Globus’s invalidity
counterclaims without prejudice, invalidity was no longer
a live issue amenable to being decided as a matter of law.
The court properly denied as moot Globus’s Rule 50(b)
motion for judgment as a matter of law of invalidity.



Cardinal Chem appears in footnote 2: Cardinal
Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 100–01 (1993)


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