Object when jury instructions include disputed claim constructions

Serio-US v. Plastic Recovery Tech (Fed. Cir. 2006).

The jury found that PRT did not infringe Serio’s patents on automatic trash dumpster locks.   

Post-Trial Practice: After the jury’s finding, the plaintiff did not move for JMOL or a new trial — thus forclosing an appeal on the question of infringement except for prejudicial error (which was not found). In addition, the plaintiff did not object to the jury instructions which included the court’s claim interpretations — without an objection these instructions cannot be overtuned unless they are a "miscarriage of justice."  No miscarriage was found.

Exceptional case: The lower court did not find this to be an exceptional case — a finding affirmed on appeal:

Exceptional cases usually feature some material, inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Federal Rule of Civil Procedure 11, or like infractions. . . . Absent misconduct in the litigation or in securing the patent, a trial court may only sanction the patentee if both the litigation is brought in subjective bad faith and the litigation is objectively baseless.

Because there was evidence that the case was not brought in bad faith, the refusal to award attorney fees was justified.


One thought on “Object when jury instructions include disputed claim constructions

  1. 1

    Important safety tip. To be sure, in this case there was apparently no objection at all and no JMOL motion, since there was no separate claim construction.

    More surprising was the case decided last year in which the Fed Cir held that a party had waived objections to disputed claim constructions by not objecting at the jury instruction phase to instructions implementing a claim construction on which it had already lost. That’s even more of a “gotcha.”

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