Masimo Corporation v. Philips Electronic North America Corporation, et al., C.A. No. 09-80 LPS, May 18, 2015

Stark, C. J.  Defendants’ motion for JMOL and/or for a new trial is denied.

The disputed invention relates to measure-through-motion technology.  Defendant conceded infringement of two patents-in-suit in light of claim construction before trial. A 10-day trial was held in August, 2014.  The jury found for plaintiff with respect to every issue, including non-infringement of defendant’s patent-in-suit and no invalidity as to plaintiff’s patents. Defendant failed to prove inadequate written description of two claims. Without any evidence of what a non-correlation canceling technique is the jury’s verdict was reasonable. As for lack of enablement, defendant failed to address the Wand factors and offered a definition of “ordinary experimentation” different from the jury instruction. A Federal Circuit decision rejecting an indefiniteness challenge to the same claim based on the same construction does not prevent defendant from challenging the validity anew, but stare decisis supports the challenge in this case.  The jury’s verdict in other respects is supported by substantial evidence.  The motion for a new trial on the basis that plaintiff’s reference to the infringement concession was prejudicial was denied. However the court found attorney misconduct in multiple references to other litigation relating to the same patents. The court before trial had ruled on the permissible evidence that could be put before the jury. Curative instructions were read, and the court concludes that the misconduct that occurred does not warrant a new trial. Additionally, a new trial based on damages or remittitur was not warranted.