But another aspect of this decision has received little attention, and that is a mistake made by trial counsel for the Williams/Thicke defendants in this case.One of the things that keeps lawyers awake at night (or should) is the risk that they will unknowingly waive a client’s legal rights. I wrote about this in 2008 (Traps for the Unwary – Waiver), and again in 2010 (Mister Softee Bitten By Waiver Under FRCP 50 ). In the 2010 post I observed that Microsoft’s failure to move for judgment as a matter of law (“JMOL” in legal jargon) under Rule 50 may have cost it several hundred million dollars.

Medisim sued BestMed for, inter alia, infringement of the ’668 patent and unjust enrichment. Both parties made several motions requesting JMOL under Fed. R. Civ. P. 50(a), but the district court denied all motions. The jury found the ’668 patent to be not invalid and infringed, and awarded Medisim damages for both its patent infringement and unjust enrichment claims.

The First Circuit recently reminded litigants what is or, perhaps, is not, required to preserve the right to file a renewed judgment as a matter of law. Under Federal Rule of Civil Procedure 50(a), before the case is submitted to the jury, a party may move for judgment as a matter of law to argue that no reasonable jury could find for the other side on an issue. The motion may be renewed under Rule 50(b) after an adverse jury finding.

If you’re involved in a jury trial federal case where damages are being sought, what do you do if the jury has awarded damages and either (a) you want to increase damages on appeal, because you represent the winning party, or (b) you want to oppose the other side’s attempt to increase the damages on appeal?An appellate court does not have the authority to increase damages on appeal simply because a party has appealed that issue. If a jury has awarded damages, an increase on appeal is foreclosed by the U.S. Constitution’s Seventh Amendment Reexamination Clause: “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”There are at least six ways to place the matter properly before the appellate court.1. Federal Rule of Civil Procedure 50(a).A party can move for a judgment as a matter of law under FRCP 50(a), but this must be done before the presentation of the matter to the jury. In some state courts, this is called a directed verdict motion.

A JMOL motion is technically not a post-trial motion, but it serves as a critical foundation for post-trial motions, which is why we cover it here. After a party has presented all of its evidence on an issue in a civil jury trial, but before the issue goes to the jury, the opposing party should move for JMOL under Federal Rule of Civil Procedure 50(a). This was formerly called a motion for a “directed verdict.”

d to preserve appellate review of a purely legal issue resolved at summary judgment. Dupree v. Younger, No. 22-210, 2023 WL 3632755 (U.S. May 25, 2023).The respondent in the appeal brought an action against petitioner for use of excessive force in violation of the Fourteenth Amendment due process rights, alleging that petitioner—a former correctional lieutenant—ordered three prison guards to attack him during his pretrial detention in a Maryland state prison. Prior to trial, petitioner moved for summary judgment, arguing that respondent failed to exhaust administrative remedies as required by the Prison Litigation Reform Act. The district court denied the motion, holding that respondent satisfied his exhaustion obligation because the Maryland prison system internally investigated the assault. The case went to trial, and the jury found petitioner liable and awarded respondent monetary damages. Respondent did not present any evidence related to his exhaustion defense at trial.Under FRCP 50(a), a party may move for judgment as a matter of law before the case is submitted to the jury. FRCP 50(b) then allows a party to renew that motion after trial. Here, although respondent made a motion for judgment as a matter of law under FRCP 50(a), the motion did not address his exhaustion defenses, and respondent did not make a renewed motion post-trial under FRCP 50(b). Respondent then appealed the issue of his exhaustion defense, which the district court had dismissed on summary judgment, to the Fourth Circuit. The Fourth Circuit dismissed the appeal, holding under Fourth Circuit precedent that a claim or defense rejected at summary judgment is not preserved for appellate review unless that claim or defense was renewed in a post-trial motion, even when the issue is a purely legal one.The Supreme Court granted certiorari to review respondent’s appeal, noting that there was a circuit split among the Courts of Appeals over whether a purely legal challenge resolved at summary judgmen

The jury found the asserted claims infringed and awarded damages to Ericsson.Post-trial, TCL moved for renewed judgment as a matter of law (JMOL) and a new trial on the damages issues under Fed. R. Civ. P. 50(b), but did not raise any § 101 issues. The district court ultimately denied TCL’s motion and enforced the jury’s verdict on damages.

Accordingly, the Federal Circuit vacated the jury’s judgment in favor of Unitherm and remanded the case for a new trial. The Supreme Court reversed, noting that Fed. R. Civ. P. 50 establishes two stages for challenging the sufficiency of the evidence in a civil jury trial. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury.

pellate court review the ultimate legal question of obviousness de novo, as the Seventh and Ninth Circuits have held and as the Federal Circuit held before 2012, or must the appellate court defer to a jury’s conclusion even on the ultimate legal question, as the Federal Circuit has repeatedly held in patent cases since 2012?Alternatively, if this Court were to conclude that obviousness presents a “mixed” question of law and fact, as the Federal Circuit now treats it, should this Court grant certiorari, vacate, and remand this case to determine whether appellate review of that “mixed” question should be de novo or deferential in light of U.S. Bank National Association ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018), a case decided after the Federal Circuit decision here? Cert. petition filed 6/21/18 (full docket here).Petition denied 10/1/18.CAFC Opinion, CAFC ArgumentPromega Corp. v. Life Technologies Corp., No. 17-1669Question Presented:Federal Rule of Civil Procedure 50(d) provides that “a party against whom judgment as a matter of law is rendered” may move for a new trial within “28 days after the entry of the judgment.” Fed. R. Civ. P. 50(d) (emphasis added). The advisory committee notes make clear that, under this subdivision (formerly, Rule 50(c)(2)), “the verdict-winner is entitled, even after entry of judgment n.o.v. against him, to move for a new trial in the usual course.” Rule 50 Advisory Committee’s Note (1963) (emphasis added). This Court has likewise recognized that “[w]here a defendant moves for n.o.v. in the trial court, the plaintiff may present, in connection with that motion or with a separate motion after n.o.v. is granted, his grounds for a new trial.” Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 325 (1967) (second emphasis added).The question presented is:Whether the Federal Circuit erred in holding that, notwithstanding Federal Rule of Civil Procedure 50(d), a verdict winner must raise new-trial arguments in its opposition to a

fy the required measurement.”View OpinionSalazar v. AT&T Mobility LLC, et al., Nos. 2021-2320, -2376 (Fed. Cir. (E.D. Tex.) Apr. 5, 2023). Opinion by Stoll, joined by Schall and Stark.Salazar sued AT&T and others for infringement of a patent directed to a communications, command, control, and sensing system comprising, among other things, “a microprocessor” for performing certain functions. In particular, the asserted claims require “a microprocessor for generating …, said microprocessor creating …, a plurality of parameter sets retrieved by said microprocessor …, [and] said microprocessor generating ….” The district court construed the microprocessor terms to require a single microprocessor that is capable of performing the generating, creating, retrieving, and generating functions.At trial, a jury found that the accused products did not infringe and that the prior art did not anticipate the asserted claims. At the conclusion of trial, AT&T moved for judgment as a matter of law under Federal Rule of Civil Procedure 50 with respect to “infringement, damages, and preclusion,” but not anticipation. The district court entered judgment reflecting the jury’s verdict.On appeal, Salazar challenged the district court’s claim construction. In Salazar’s view, “a correct claim construction would encompass one microprocessor capable of performing one claimed function and another microprocessor capable of performing a different claimed function, even if no one microprocessor could perform all of the recited functions.” The Federal Circuit disagreed and affirmed the district court’s claim construction. The Federal Circuit explained: “We agree with the district court that while the claim term ‘a microprocessor’ does not require there be only one microprocessor, the subsequent limitations referring back to ‘said microprocessor’ require that at least one microprocessor be capable of performing each of the claimed functions.” The court analyzed several prior cases involving similar issues and confirmed that “this app