Dr. Richard Chinn reports:

In Flexuspine, Inc. v. Globus Medical the Fed. Cir. affirmed the district court’s denial of defendant’s 59(e) motion to alter or amend judgement to include the jury’s invalidity verdict without prejudice and 50(b) motion for JMOL on invalidity as moot and patentee’s cross-appeal for summary judgment of noninfringement.  Following the jury verdict of no infringement, invalidity and no damages, contrary to a stop instruction in the jury instructions and verdict form to only answer the question of validity and damages if infringement were found, the district court instructed the jury to retire again and return a verdict consistent with the court’s written instructions on the verdict form. Applying the law of the Fifth Circuit, the jury’s answers to validity and damages were in conflict with the stop instruction, and thus the district court was found to have exercised proper discretion. Patentee’s cross-appeal of the summary judgement noninfringement was denied, citing patentee’s failure to provide evidence of infringement as to an agreed upon claim term, even after defendant identified this defect in their cross-appeal brief.