On January 19, 2018, the Federal Circuit issued a decision in Flexuspine, Inc. v. Globus Med. The appeal centered on the jury verdict form and how the jury specifically handled its duties in relation to that jury form.
The jury form included what is known as a “stop instruction,” which told the jury not to consider any of the invalidity defenses unless they first determined that the defendant was liable for infringement. Globus, the defendant, did not object to the instruction prior to jury deliberations.
Upon reviewing the verdict form after deliberations ended, the district court determined that the jury had not followed the instructions and had filled out the verdict form incorrectly. The jury found no infringement, but did not stop there, and instead moved on to consider invalidity and damages. The jury form indicated that the jury found the claims invalid, and no damages should be awarded.
The district court instructed the jury to return to deliberations with a blank verdict form, again instructing the jury only to reach the second and third questions on validity and damages if there was a finding of infringement. The jury returned a new verdict, which found the claims not to be infringed. The jury did not address validity or damages. At this point, Globus lodged its first formal objection.
The district court entered final judgment that Globus did not infringe any of the asserted claims of the patents-in-suit.
Globus appealed.
The Federal Circuit applied Fifth Circuit law to the procedural questions relating to jury instructions and deliberations. The Fifth Circuit generally reviews denial of a Rule 59(e) motion for abuse of discretion, except for reconsideration of a question of law, which is reviewed de novo.
Under Fifth Circuit law, a jury answering questions in violation of a “stop instruction” is sufficient to render the verdict internally inconsistent. Thus, the district court was entitled to refuse entry of the judgment on invalidity. The district court also has discretion to determine when a series of answers submitted by a jury is not clear and requires re-submission to a jury. As a result, the Federal Circuit declined to disturb the district court’s proper exercise of its discretion.
Globus also argued that the district court violated Globus’s Seventh Amendment rights, by improperly finding that it had waived its right to a jury on its invalidity counterclaims by failing to object to the verdict form. The Federal Circuit explained that the district court properly determined from Globus’s lack of objection to the verdict form prior to deliberations that Globus submitted invalidity to the jury only as an affirmative defense, not a counterclaim. Moreover, the district court dismissed Globus’s invalidity counterclaims without prejudice; those claims survived for Globus to assert another day.
Once the court dismissed Globus’s invalidity counterclaims without prejudice, invalidity was no longer a live issue amenable to being decided as a matter of law. Ultimately, according to the Federal Circuit, the district court properly denied Globus’s Rule 50(b) invalidity motion as moot.
Tags: jury form, patent, Patent Litigation, patents
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