It would seem that there are two sorts of appeal. One is an appeal against
the specific order (e.g., arguing that Judge Koh exceeded what was permissible
under the law in making the order. There is also the main appeal against the
determinations on patent validity and infringement. Presumably Judge Koh will
not waste time on damages for patent infringement until the CAFC has ruled on
validity and infringement.
My expectation, for what it is worth, on how
the CAFC will treat the appeal on the substantive issues, in accordance with
what seems to be their usual practice (IANAL, etc.). They will probably go back
to the Markman hearing, and consider carefully the judge's rulings on the
meanings of the words in the claims (presumably reviewing the briefs of the
parties to the dispute). Then they will construe the claims themselves. (CAFC
opinions routinely state that "claim construction is reviewed de
novo and without deference") They will form a judgement as to whether
their construction of the claims is in accordance with that of the trial judge.
A lot of CAFC opinions are filled with lengthy technical stuff in which the CAFC
judges explain in minute detail the construction of the individual words of the
claim and the basic science and engineering principles that lead them to
overrule the trial judge. A number of the CAFC judges have degrees (at
Bachelor, Master, or PhD level) in scientific and technical fields, so,
particularly with hardware claims, will discuss in exhaustive detail the
circuitry etc. One only needs to read a few CAFC opinions of this sort to
realise why the drafting of patent applications is the preserve of the patent
lawyer, not the inventor.
If the CAFC come to the conclusion that the
trial judge's claim construction is not substantially in accord with theirs, for
reasons that might significantly affect the outcome of the of the case, then
they might well vacate and remand for a new jury trial on infringement, with the
CAFC's claim construction in place of that of the trial judge.
If they
are satisfied with the trial judge's claim construction, they will probably turn
their attention to the the ruling on JMOL on the jury verdict, according to the
standard of review of the relevant circuit. For the 9th circuit, this seems to
be set out as follows in Presidio Components Inc. v. American Technical
Ceramics Corp (2010-1355, 2011-1089):
This court reviews
JMOL determinations after a jury verdict and new trial rulings as well under the
same standard applied by the trial court. Lucent Techs., Inc. v. Gateway, Inc.,
580 F.3d 1301, 1309 (Fed.Cir.2009). The United States Court of Appeals for the
Ninth Circuit reviews a motion for JMOL as a matter of law. Pavao v. Pagay, 307
F.3d 915, 918 (9th Cir.2002). "JMOL is appropriate when 'a party has been
fully heard on an issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue.' " Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir.2004)
(quoting Fed.R.Civ.P. 50(a)). A district court in the Ninth Circuit "may
grant a new trial only if the verdict is against the clear weight of the
evidence." Id. The resolution of a motion for a new trial is reviewed for
abuse of discretion. Id.
Thus it would seem that they will
decide "whether they think that the verdict is against the clear weight of
the evidence", and, if their assessment differs from that of the trial
judge, whether the trial judge "abused her discretion" in denying
JMOL.
I am sure that Judge Koh will want all of the above firmly settled
before she has to revisit the issue of the damages. [ Reply to This | Parent | # ]
|