$469 Million: There and Gone

ClearPlay v. Dish Network (D.Utah 2023)

Earlier in March 2023, a Utah jury sided with the patentee ClearPlay – find that Dish Network infringed two “clean movie” patents used to to skip the naughty bits of a video program. US7577970 (Claims 28 and 33); and US6898799 (Claim 12).  The jury went on to award a “reasonable royalty” of $469 million.

Hold that pause button.  This week, Judge Nutter rejected the jury verdict and instead granted the defendant’s motion for Judgment as a Matter of Law.  Nutter concluded that the patentee had not shown either literal infringement or infringement by equivalents.  The court ordered DISH to prepare a draft order for his signature that adopts the rational from its briefing.

The draft order will contain support, citations, and consistent rationale from its briefing; transcript references from DISHs appendix (which should be used extensively in the draft order); and references to contrary positions taken by ClearPlay to illustrate the conflicts that this ruling resolves.

Minute Entry of March 21.   The case has been pending since 2014.

20 thoughts on “$469 Million: There and Gone

  1. 6

    Juries rarely understand patent cases, they frequently get it wrong, but it is somewhat rare that they completely whiff. When they do, the trial judge should step in under FRCP 50 and fix it as a matter of law.

  2. 5

    Judgment as a Matter of Law or JNOV with the judge reversing a jury infringement decision has not been that frequent* but is not that surprising considering that lay juries can and do ignore or misunderstand patent claim terminology legal scope limitations, whereas the judges, per Markman, are the ones who are supposed to be interpreting them – they also interpret terms in contracts.
    *I do not have any specific numbers, but PRE-trial summary judgements of non-infringement after or part of Markman hearings are far more commonly reported.

    1. 5.1

      And, judicial (rather than jury) decisions do not have the same level of deference on appeal. Furthermore, claim construction [fairly often the decisive disputed issue in infringement disputes] is an issue of law, which the Fed. Cir. reviews de novo.

  3. 4

    Thanks for the enlightenment below, Guest.

    Yet as Martin posits, there ought to be a better way to end such waste.

    Presuming the good judge gave his, “they’re acceptable to me” jurors specific, detailed verdict instructions (no, I haven’t read them), why would the jury’s decision thereafter not be accepted?

    One of the reasons many don’t want to be jurors: “Why should we bother or care about the case, since the judge can just ignore and overrule our well-considered decision.”

    Why indeed.

    (And no; as my good friend anon could tell you, I am not an attorney. Though my wonderful Mother thinks I should have been one.)

    (You’d like the universe I inhabit, kotodama. It’s the one where logic and reason rule supreme.)

    1. 4.1

      With respect, I just don’t get this comment. Trial judges for centuries have had power to set aside jury verdicts when the verdict was without evidentiary support. This power extends to both criminal and civil cases, and in civil cases, that power goes both ways–a judge can also set aside a verdict no liability and enter judgment for the plaintiff if the evidence of liability is conclusive and undisputed.

      This is an enormously important power to prevent gross injustices, and during a bleaker time in our history, it saved a lot of criminal defendants from facing jail or even execution where the verdicts against rested no on the evidence but the fears and/or prejudices of the jurors. The existence of this power recognizes that juries from time to time make mistakes, or base verdicts on factors other than the evidence. Simply put, Pro Say, you would absolutely not want to live in a system in which jury verdicts were absolutely controlling in all cases with no recourse whatsoever.

      But the rules make clear that setting aside a jury verdict should only occur in exceptional circumstances, so it requires an exactly standard which the trial judge here apparently found to be satisfied. I don’t get the feigned outrage, Pro Say. Have you studied the record to determine the basis for the district court’s action? Other than the mere fact the verdict set aside here happened to have been in favor of a patent holder, do you have any reason to believe that the trial court acted improperly?

      1. 4.1.1

        Thanks LR.

        Your explanation is well taken. I do now understand why jury decisions are sometimes — correctly so — set aside by a judge.

        Any figure / percentage of how often this happens? More often with civil cases than criminal?

        That said, it really is unfortunate that so much can be put out by so many for so long . . . for naught. Perhaps, as Martin posits, there is no other way.

        (No; as I haven’t reviewed the case, I can’t offer an opinion of the judge’s decision to do so in this case.)


          And no; as my good friend anon could tell you, I am not an attorney.

          Thanks for your earlier reference (reposted), as well as your last response – recognizing your limitations.

          This is a major reason why I so often choose not to deride you (in direct contrast with marty).

          Your “gut” reaction is one of wanting innovation protection to be strong. So while you may be in error (here, one directly related to legal procedure), your aim has merit.

          Let me offer a rather “patent-specific” angle to the current discussion that while not alleviating your (now corrected) legal process error, WILL alleviate the severity of that error:

          The concept, so often — but alas, only partially — ‘championed’ by Greg “I Use My Real Name Except When I Post Under Dozens” DeLassus is that the Oil States case merely – and legitimately – portrayed the personal property aspects of a bundle of property rights of a granted US Patent as a “Public Franchise.”

          The aspect of that concept that alleviates your error comes part and parcel with the notion that ANY “franchise” as a legal vehicle inures duties on the FranchisOR to the FranchisEE.

          One of these is defense of the item, which is also tied to the FranchisEE having expectation interests (read that as reasonable economic value tied to the notion that a granted patent IS valid).

          Whether or not such applies in any particular case is of course Fact Dependent. But the notion remains that if a FranchisEE loses through no fault of their own, the FranchisOR should be ‘on the hook’ to make that FranchisEE whole for all reasonable expectation interests.

  4. 3

    Nine years of litigation. Millions upon millions in legal fees. Days of the lives of jurors. The ecstasy of a half-billion dollar payday and the agony of the JMOL axe for the plaintiff. Untold disruption and distraction to the highly competitive business of the defendant. And all of it mere pre-season action, because now the actual game starts at the CAFC, where the entire opus of the near decade’s record is advisory- if even that- relative to the gut feelings held by the three panelists toward the claims at issue.

    There has to be a better way. Or maybe not. It’s essential to the progress of the arts that people can skip commercials, the idea of which is certainly unknown to anyone who doesn’t know what a VCR was and the technology of which must be something spectacular indeed.

    1. 3.1

      “There has to be a better way.”

      Replace the judge and the jurors with AIs.

      Or maybe just one AI.

    2. 3.2

      “ the technology of which must be something spectacular indeed.”

      Oh I’m sure it was a totally non-obvious solution to the problem of avoiding or preventing data from being seen. Unlike anything before! Especially if it involves computers which people have known from the beginning were and are extremely limited tools when it comes to data processing. No more than electric abacuses, really, good for adding numbers and that’s it.

      1. 3.2.1

        No more than electric abacuses, really, good for adding numbers and that’s it.

        Do you agree to abstain from ANY use that is more than merely “adding numbers”…?

        If not, kindly

  5. 2

    Someday I’d like to visit the alternate universe you inhabit where judges declare in advance that any verdict the jury returns will be automatically found reasonable and thus impossible to overturn as a matter of law.

  6. 1

    So let me get this straight . . .

    First the judge approves of the jury (who’s members he presumably found would all be reasonable) which is seated to hear the case . . . which jury hears all the evidence and arguments of both sides . . . thereafter rendering a verdict for the plaintiff . . . which the judge then overturns because . . . the very jury he seated was . . . was . . . (wait for it) . . . unreasonable.

    With judges like this, who needs juries?

    Who indeed.


          I wish this blog had an edit function. Ironic that it and other patent blogs don’t, but say, political science blogs I frequent, do.

          Anyway, if 1.2 was directed to me, then 1.2.1 is directed to that. Otherwise I could include it as a further response to Pro Say at 1 (and in that case, sorry to Tricki Woo for any confusion!).

    1. 1.3

      There is a risk-reward system in place for this. If a judge erroneously grants a summary judgment motion before trial, you tend to have a huge, expansive record. It’s easy to come up with a genuine factual dispute, so if you grant it, you risk the parties appealing, it getting reversed, and the court having to ramp up again years later (often with the law clerks who have the institutional knowledge long-gone) and hold a trial again. It’s a huge reward, yes, but the risk is very high, which is why judges tend to be cautious in granting summary judgment.

      On the other hand, granting a JMOL motion after trial (or even mid-trial) is far less risky. You have a much clearer, narrower record (just the evidence presented at trial), which limits the ways in which you can get reversed. The risk is also lower if you get it wrong, because while you’re going to need to hold proceedings, it won’t be a full trial, typically.

      Granting a Rule 50(b) motion is just much less risky than granting a Rule 56 motion, which is why cases where JMOL is granted so often have summary judgment motions denied for the exact same reasons.

      Your problem isn’t with the procedural rules, though – it’s with the idea that Rules 50 and 56 do not violate the Reexamination Clause. But it’s hard to see the Supreme Court reversing that long-established precedent.

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