[co-author: Ange Christiani]

The District Court for the District of Delaware recently held a patentee waived its right to seek JMOL on infringement following a jury verdict of non-infringement because the patentee’s Rule 50(a) motion focused solely on the issue of validity. As a result of the district court’s ruling, the patentee is likely precluded from seeking appellate review relating to the sufficiency of the evidence of the jury’s adverse verdict on infringement.

At trial, both Plaintiff/Patentee (Deere) and Defendant/Accused Infringer (Precision Planting) brought motions for JMOL under Rule 50(a). Deere requested JMOL of only invalidity, while Precision broadly sought JMOL on essentially all issues raised at trial. The district court deferred ruling on Deere’s motion, and granted Precision’s motion in-part. Notably, the district court denied Precision’s motion for JMOL of non-infringement.

Following the district court’s rulings, the jury returned a verdict of non-infringement on all asserted claims. Because the verdict form specifically instructed the jury to only reach the question of invalidity in the event it found infringement, the jury did not make any determination with respect to invalidity.

Post-verdict, Deere attempted to renew its motion for JMOL under Rule 50(b), but rather than renew its motion on invalidity (an issue not reached by the jury), Deere instead argued that it was entitled to JMOL under Rule 50(b) on the issue of infringement.

Precision disputed the appropriateness of Deere’s Rule 50(b) motion, arguing that Deere waived its right to seek JMOL of infringement because it failed to make that argument in its Rule 50(a) motion. Deere did not dispute that it failed to seek judgment of infringement under Rule 50(a), but argued that no formal motion was required because the district court stated that it was sending infringement to the jury when it denied Precision’s Rule 50(a) non-infringement motion.

The district court rejected that argument, holding a Rule 50(b) motion can only be decided on the particular grounds advanced by the movant in its own Rule 50(a) motion at the conclusion of the non-moving party’s case. Deere could not rely on Precision’s motion to avoid waiver because the standard for a party who bears the burden of proof are different from a party who does not and because a party must specify the judgment sought and supporting facts in its Rule 50(a) motion in order to preserve an issue for judgment under Rule 50(b). The district court added that it would have denied Deere’s JMOL on infringement even if not waived because there was sufficient evidence produced at trial from which a reasonably jury could find Precision had not infringed.

Importantly, the district court’s waiver determination likely extends to Plaintiff’s ability to seek appellate review of the sufficiency of the evidence of infringement. See Salazar v. AT&T Mobility LLC, 2023 WL 2778774 (Fed. Cir. Apr. 5, 2023) (emphasis added). The Federal Circuit recently found waiver in a case involving similar circumstances where a party raised Rule 50(a) motions on certain grounds, only to appeal other grounds. Id. There, the court reasoned, “[a] party must make proper motions under Rule 50 in order to appeal an adverse verdict on grounds related to sufficiency of the evidence.” Id. at *6.

Practice Tip: It is important to challenge at the Rule 50(a) stage every aspect of a case that a party may wish to challenge in a post-verdict Rule 50(b) motion and on appeal to ensure that arguments are properly preserved both at the trial court and before the Federal Circuit.