Innogenetics, N.V. v. Abbott Laboratories - WilmerHale

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proposed jury instruction, rather than by bringing the matter directly to the attention ofthe court and opposing counsel.”We review procedural issues not unique to patent law under regional circuit law.Bowling v. Hasbro, Inc., 403 F.3d 1373, 1375 (Fed. Cir. 2005). Absent extraordinarycircumstances, the Seventh Circuit has stated that it rarely reaches forfeited argumentsin civil litigation. Ocean Atl. Dev. Corp. v. Aurora Christian Sch., Inc., 322 F.3d 983,1005 (7th Cir. 2003). Abbott’s belief that “there was no need to raise [its argument] priorto the court adopting a claim construction not proposed by either party” falls well short ofextraordinary. Accordingly, we affirm the district court’s finding that Abbott had beenfully heard on the issue of literal infringement and that there was no legally sufficientevidentiary basis for a reasonable jury to find for Abbott on that issue. See Fed. R. Civ.P. 50.It should be noted that, forfeiture aside, Abbott’s argument lacks merit.Essentially, Abbott argues that a patent can never be literally infringed by embodimentsthat did not exist at the time of filing. Our case law allows for after-arising technology tobe captured within the literal scope of valid claims that are drafted broadly enough. SeeSuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 878-80 (Fed. Cir. 2004)(finding that the claim limitation “regularly received television signal” is broad enough toencompass digital signals even though no televisions that could receive digital signalsexisted as of the filing date).Additionally, Abbott itself has put forth evidence that Realtime PCR did in factexist by the time the inventors filed their PCT application in 1992, and by the time theyapplied for the ’704 patent in 1994. In his expert report, Abbott’s witness, Dr. Bruce2007-1145, -1161 9
Patterson, stated that “Realtime PCR using 5’ to 3’ exonuclease activity was pioneeredaround 1991 . . . .” Abbott does not dispute this evidence. We have no reason todisturb the district court’s grant of JMOL as to literal infringement.II. INVALIDITYAbbott challenges the district court’s denial of its motion for a new trial on theissue of invalidity on a number of evidentiary exclusions. Regional circuit law governsour review of motions for a new trial. EMI Group N. Am., Inc. v. Cypress SemiconductorCorp., 268 F.3d 1342, 1348 (Fed. Cir. 2001). Under Seventh Circuit law, the districtcourt’s denial of a motion for a new trial is reviewed for abuse of discretion. See Naeemv. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006). A new trial may be grantedwhere “the verdict is against the weight of the evidence, the damages are excessive, orif for other reasons the trial was not fair to the moving party.” Id. (internal quotationsomitted). Evidentiary rulings are also reviewed for abuse of discretion. Wollenburg v.Comtech Mfg. Co., 201 F.3d 973, 977 (7th Cir. 2000) (citations omitted).A. ObviousnessAbbott contends that it was clear error for the district court to preclude Abbott’sobviousness defense.During the discovery period, the district court grantedInnogenetics’ motion to strike Dr. Patterson’s supplemental expert report because itviolated the court’s earlier order on the filing of such supplemental reports. Abbott doesnot contest that ruling. This left Abbott with only Dr. Patterson’s original expert reportfor his planned testimony on obviousness. The district court determined that the reportwas insufficient to support a jury finding of obviousness and thus failed the requirementsof Federal Rule of Civil Procedure 26(a). Therefore, at the final pretrial conference, it2007-1145, -1161 10
Page 1 and 2: United States Court of Appeals for
Page 3 and 4: appeal, we find no reversible error
Page 5 and 6: 1) U.S. Patent No. 6,071,693 (the C
Page 7 and 8: the complex has been destroyed, and
Page 12 and 13: granted Innogenetics’ motion in l
Page 14 and 15: On appeal, Abbott argues in a singl
Page 16 and 17: permitted to adduce evidence on obv
Page 18 and 19: Abbott did not disclose the Cha pat
Page 20 and 21: detects and classifies the various
Page 22 and 23: Patterson stated that the Resnick p
Page 24 and 25: ’342 application were not novel i
Page 26 and 27: At the damages phase of trial, the
Page 28 and 29: Abbott could sell its product throu

Innogenetics, N.V. v. Abbott Laboratories - WilmerHale

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