By Dennis Crouch
Novozymes A/S v. DuPont Nutrition Biosciences (Fed. Cir. 2013) involved an interesting issue of the weight a judge should give to a jury decision on JNOV. In the case, a jury rejected the accused infringer's written description invalidity argument. However, in a post-verdict judgment the district court judge determined the patent claims invalid as a matter of law, notwithstanding the jury verdict. The law ordinarily requires that jury decisions be given some amount of deference and factual determinations by a jury (such as the written description inquiry) should only be overturned by a judge when not supported by substantial evidence. Some courts rephrase this test as requiring a verdict be "clearly erroneous" before a court may overturn that verdict and, as such, a court cannot merely substitute its own judgment.
The logical confusion in this case stems from the rule that patent invalidity must be proven with clear and convincing evidence. Thus, the court's JNOV decision ruled that: the jury verdict (finding DuPont failed to present clear and convincing evidence of invalidity) was clearly erroneous. My question is whether these two requirements actually merge in this situation. I.e., can the court overturn the jury's non-invalidity verdict if it finds clear and convincing evidence that the patent is invalid? Or instead, must the court apply some standard that is even higher than clear-and-convincing evidence before overturning the jury verdict. Neither of these solutions seem appropriate, although in the appellate court case the majority (Judges SCHALL and BRYSON) chose the prior while the dissent (Chief Judge RADER) chose the latter.