In most patent cases that make it through trial, the losing party files a post-trial motion seeking judgment as a matter of law (JMOL), asking the judge to override the jury and find for them instead. It seems fairly uncommon to see a case that went to trial and did not settle that doesn't involve a post-trial JMOL motion from one side or the other.
Under the federal rules, to file a post-trial JMOL motion under FRCP 50(b), you must first file a JMOL motion during trial under FRCP 50(a). That motion must be made before the case is is submitted to the jury, and must "specify the judgment sought and the law and facts that entitle the movant to the judgment." FRCP 50(a).
This tends to cause a scramble around the time that the parties close their cases. Attorneys normally expect the Court to deny the motion (although the Court can absolutely grant these), but they still need to sort out what issues they want move on, and to make sure, procedurally, that they are preserving all of their rights in case they don't prevail at trial.
Parties and courts vary on whether the motion can be verbal or must be written, and what level of detail is required. Sometimes, parties will move verbally in the courtroom, and then file a backup written motion on the docket just to be sure.
That seems to be what plaintiff intended to do in Deere & Company v. AGCO Corp., C.A. No. 18-827-CFC (D. Del.). After the close of evidence, plaintiff's counsel tried to move for JMOL as usual—but used some in-artful language:
[DEERE'S COUNSEL]: The comment I made before was simply I wanted to -- we were intending to move for JMOL on the issue of validity. And so I wanted to resolve that before we know whether we're going to recall Dr. Glancey.
THE COURT: I see. I'm going to let the -- I'm going to let invalidity go to the jury.
[DEERE'S COUNSEL]: Okay. Can we --
THE COURT: I'm going to defer ruling on your motion and --
[DEERE'S COUNSEL]: May we file something on the docket just so we preserve appellate rights?
THE COURT: If you feel like you have to, you can confer, yes.
The Court noted that the plaintiff never actually filed its JMOL motion on the docket.
Plaintiff ultimately lost on infringement, and the jury never reached invalidity. After trial, it moved for JMOL of infringement.
Chief Judge Connolly issued an order yesterday denying plaintiff's post-trial JMOL motion, on the grounds that the plaintiff had failed to move under FRCP 50(a) on the issue of infringement, rather than invalidity, during trial:
Precision argues, and I agree, that Deere failed to make a Rule 50(a) JMOL of infringement motion and therefore has waived its right to seek JMOL of infringement under Rule 50(b). Deere does not dispute that it never made a Rule 50(a) motion for JMOL on the issue of direct infringement. D.I. 517 at 3-4.
This is true even though the defendant had moved for JMOL of non-infringement, and the Court had stated that infringement was going to the jury:
[Plaintiff] argues instead that no formal Rule 50(a) motion was required because I said in denying Precision's JMOL motion that "[d]irect infringement is going to the jury." . . . According to Deere, "it is not essential that there be a formal motion" under Rule 50(a) because the rule's purpose is to "apprise the trial court of the moving party's position to see if any defects can be corrected before the jury retires." . . . And Deere insists that "[a]ll were fully apprised of Deere's position that [Precision] failed to rebut infringement."
The Court rejected that argument, because Plaintiff's JMOL of infringement is governed by a different standard than Defendant's JMOL of non-infringement:
Rebutting infringement and proving infringement, however, are two different things. As discussed above, the standards that govern a JMOL motion brought by a party with the burden of proof differ from the standards that govern a JMOL motion brought by a party that does not bear that burden. Whether "formal" or "informal," a Rule 50(a) motion "must specify the judgment sought and the law and facts that entitle the movant to the judgment." Fed. R. Civ. P. 50(a)(2). And "[a] post-trial Rule 50 motion can only be made on grounds specifically advanced in a motion for a directed verdict at the end of plaintiffs case."
After holding that Plaintiff had waived it's Rule 50 JMOL motion, the Court nonetheless addressed that motion, holding—luckily for the attorneys—that it would have denied the motion anyway.
Every Trial Attorney's Nightmare
It's not surprising that a Rule 50(a) motion could fall through the cracks. When you are in the middle of a trial, worrying about themes, witness outlines, cross prep, exhibits, objections, closings, and everything else, the last thing you feel like you should be thinking about is the Rule 50(a) motion, which the Court is going to deny anyway.
Plus, the Court and opposing counsel have no incentives to remind you of the Rule 50(a) motion during trial. It's both easy to miss and absolutely critical to make.
So, it's obviously important to keep it near the top of your mind around the time it is due. If you are a junior attorney on the trial team, or if you are serving as Delaware counsel, it's good to be prepared to remind the other trial counsel about the Rule 50(a) motion at the appropriate time. (The appropriate time is not necessarily the second after the other side closes its case—its at least the night before that, or earlier, so that the team can prepare).
Oh, They Waived Almost Everything Else Too
I focused on the Rule 50(a) motion above, because that is the true nightmare fuel. But if you read the opinion—spoiler alert—you'll see that the Court found that Defendant had waived many (all?) of its other arguments as well. For example, it waived its Rule 52, 54, and 60 arguments by not citing or discussing the standards:
Consistent with the title of its motion, Deere says in the first sentence of its opening brief that it brought the motion "pursuant to Rules 50, 52, 54, and 59." D.I. 483 at 1. That sentence is the only occasion where Deere mentions Rules 52, 54, or 60 in its briefing. It does not otherwise cite, let alone discuss the substance of or standards that govern, those rules. Deere has therefore waived any arguments that it is entitled to relief under Rules 52, 54, or 60.
* * *
Deere now argues that it is entitled to a new trial because Precision " impermissibly argued at trial two claim constructions-one for infringement and one for invalidity." D.I. 483 at 21. But it has waived that argument by virtue of its failure to object to Dr. Fleming's testimony, the invalidity jury instruction, Precision's closing argument, and the jury verdict form.
There are a lot of good lessons about waiver in this opinion.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
