Thursday, March 15, 2018

CAFC reverses ED Pa in DOMINION ENERGY case; expert witness skewered

The appellant Alstom prevailed.

This is an appeal from a final judgment following a
jury trial in a patent infringement case. Alstom Grid LLC
(“Alstom Grid”) appeals the district court’s (1) denial of
judgment as a matter of law (“JMOL”) of noninfringement,
(2) denial of its motion to vacate or remit the jury’s
reasonable royalty damages award, (3) denial of JMOL of
no willful infringement and grant of enhanced damages,
and (4) grant of a permanent injunction. For the reasons
explained below, we reverse the district court’s denial of
JMOL of noninfringement based on an absence of substantial
evidence to support the jury verdict
. For that
reason, we vacate the damages award, judgment of willful
infringement, enhanced damages award, and permanent
injunction. We remand for further proceedings consistent
with this opinion.

At issue

The question before us is whether substantial evidence
supports the jury’s finding that the accused system
includes every limitation of the asserted claims. We
conclude that it does not. As discussed above, the asserted
claims require “generat[ing] an energy delivery parameter
based on a comparison of the measurement data
received from the subset to a controller target voltage
band.” See ’883 patent claims 1, 15. The claims require a
comparison of two specific things. Evidence of a comparison
of something other than those two things does not
support a finding of literal infringement.
We conclude that no reasonable juror could find that
the accused product compares the measured data to a
controller target voltage band. The evidence presented to
the jury shows that the accused system compares the
measured data to a single calculated voltage, as opposed
to a voltage band as required by the claims.

The expert witness did not fare well:

Dominion relies heavily on the testimony of
Dr. Brown, its technical expert. Dr. Brown’s testimony,
however, does not provide substantial evidence to support
the jury’s verdict because his testimony was conclusory,
unsupported, contrary to the evidence in the case, or not
directed to the claim limitation at issue. We address the
problems with his testimony below.


Beyond his conclusory testimony, Dr. Brown made
several critical admissions. First, Dr. Brown agreed that
the accused system compares the calculated voltage—not
the measured voltage—to a target band:
[Alstom Grid] compare[s] the calculated voltage to
the measured voltage to determine the error. And
then they use that error to adjust the limits. And
then they compare the calculated voltage to the
adjusted limits in their software.
J.A. 10562–63. Dr. Brown also admitted that the limitadjustment
algorithm code, which is the key algorithm in
the accused system, does not compare the measured
voltage and a target voltage band. Dr. Brown further
admitted that the accused function “operates on calculated
voltages” and “never uses measured voltage to generate
an energy delivery plan.” J.A. 10489–90, 10493. These
admissions further support our conclusion that a reasonable
jury would not have a legally sufficient evidentiary
basis to find for Dominion on the issue of direct infringement.


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