Challenge To Inconsistent Jury Verdicts Are Waived In Absence Of Timely Objections

In L&W, Inc. v. Shertech, Inc. (No. 06-1065; Dec. 14, 2006), the Federal Circuit vacates summary judgment of infringement of Shertech's heat shield patent by L&W products, affirms holdings on invalidity, and affirms District Court's rejection of inequitable conduct claim. L&W sought declaratory judgment of non-infringement, invalidity, and unenforceability due to inequitable conduct. Shertech counterclaimed for infringement. The district court granted summary judgment on the infringement counterclaim and rejected the inequitable conduct claim, finding that L&W failed to prove an intent to deceive. The invalidity claims were presented to a jury that rendered special verdicts and found all of the claims invalid except claim 7. Both parties moved for a new trial or judgment as a matter of law, asserting inconsistency in the verdicts. The district court denied both motions and entered judgment against L&W on claim 7. L&W appealed from the judgment of infringement, and Shertech cross-appealed from the judgment holding claim 10 invalid.

The district court's summary judgment of infringement was predicated on a finding that L&W effectively acknowledged infringement of certain claim limitations. Supporting this finding, the judgment relied on a patent application filed by L&W, noting admissions by L&W employees that the application described L&W's design. The Federal Circuit, however, reasons that the application and the accused products are different things and finds that the L&W employee admissions fall short of admissions “that the accused products are identical to a specific heat shield described in the application.” The court further opines that Shertech cannot simply assume that all of L&W's products are identical to one tested by an expert and shift the burden to L&W to show the contrary. The court notes that, in seeking summary judgment of infringement, the patentee must make a prima facie showing of infringement for each accused device. Finding that Shertech failed to satisfy its burden of showing no genuine issue of material fact as to the issue of infringement, the Federal Circuit vacates the summary judgment of infringement.

L&W asserted that the verdicts regarding claims 7 and 10 are inconsistent because claim 10 depends from claim 7. Shertech agreed with the asserted inconsistency but averred in its cross-appeal that both claims 7 and 10 should be found valid. The district court held that both parties waived their objections to the special verdicts by failing to object before the jury was discharged. At the district court trial, neither party objected before or after the jury was discharged as to inconsistency of the verdicts. L&W argued on appeal that counsel did not have adequate time to evaluate the verdicts since the return of the verdict, the jury poll, and the discharge of the jury all occurred within six minutes. The Federal Circuit finds, however, that the verdict was simple and the issue of inconsistency between the verdicts as to claims 7 and 10 should have been obvious. Refusing to apply a “plain error” exception to the waiver rule, the court holds that the parties waived their objections to inconsistency in the jury's findings by failing to object at trial.