Discovery Gamesmanship Backfires: Federal Circuit Orders New Trial After Defendant’s Bait-and-Switch on Testing Requirements

by Dennis Crouch

In Magēmā (Maggie-May) Technology LLC v. Phillips 66, 2024-1342 (Fed. Cir. Sept. 8, 2025), the Federal Circuit reversed a district court's denial of a new trial motion, finding that defendants' "improper and prejudicial" trial arguments were not harmless error where the jury returned a general verdict of noninfringement. The case arose from Phillips 66's alleged infringement of patents related to desulfurizing heavy marine fuel oil to comply with International Maritime Organization sulfur content requirements.  See U.S. Patent No. 10,308,884.  One frame to see the case is as a backfire demonstration: Here, defendants fiercely resisted producing evidence during discovery, then later at trial pointed to the absence of that very evidence to defeat plaintiff's case. Although the district court permitted this approach, the appellate panel did not.

Writing for a three-judge panel, D.N.J. Chief District Judge Renée Marie Bumb (sitting by designation) found error in permitting Phillips to present this non-infringement argument.  Although there were alternative non-infringement theories, the general verdict meant that there was no way to discern whether the verdict was impacted by the "prejudicial noninfringement theory."