Tuesday, September 12, 2017

UNIFRAX I, LLC loses on JNOV at D. Delaware

There is both an issue of "argument not made" AND improper referencing in the brief:

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 "l 00% 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 [*5] 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. US.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."); Dura-Last, Inc. v. Custom Seal, Inc., 321F.3d1098, 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."'). [*6] 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")).

Of the issue of juror confusion:

During the cross-examination of Dr. Nosker, Defendant objected, "Mr. Levine is suggesting to the jury that the construction of the claim is that only resins can be carriers when, in fact, it is the carrier such as a resin or adhesive. I'm just concerned that ifhe continues to suggest that, they're [*8] going to be confused." (Tr. 1208:2-9). I overruled that objection, stating that Mr. Levine "hasn't explicitly suggested that. You know, it seems like something you could bring up on redirect." (Tr. 1208:10-13).
Before I excused the jury to begin deliberations, Defendant further requested "a corrective instruction that carriers are not limited to the examples of resins, adhesives paper or cloth. I think that Mr. Levine implied strongly that it is a limiting construction and it's not." (Tr. 1848:10-15). I overruled that objection, stating, "I think the instruction that I've given that's in the book as to what it is is sufficient, so I'm not going to give that." (Tr. 1849:2-5).
There is no miscarriage of justice here. I do not think a jury was misled to believe that a carrier can only be resins or adhesives. Mr. Levine never argued that a carrier can only be resins
or adhesives. Indeed, Mr. Levine made clear that resin and adhesives are merely examples of
carriers. (Tr. 1839: 10-19). My construction, which was provided to the jury, further served to mitigate juror confusion.

Case: DuPont v. Unifrax, 2017 U.S. Dist. LEXIS 146950


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