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University of Pittsburgh of the Commonwealth System of Higher v. Varian Medical Systems

June 29, 2012

UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION D/B/A UNIVERSITY OF PITTSBURGH,
PLAINTIFF,
v.
VARIAN MEDICAL SYSTEMS, INC.,
DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION RE: DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (DOC. NO. 880) AND MOTION FOR NEW TRIAL (DOC. NO. 882)

I. Introduction and Procedural History

This is an action in patent infringement. This Court has previously set forth the detailed procedural and factual history of this case in its Memorandum Opinion on Pretrial Motions in Limine and its Memorandum Opinion Re: Enhanced Damages Pursuant to 35 U.S.C. § 284, Attorneys Fees Pursuant to 35 U.S.C. § 285, Prejudgment Interest Pursuant to 35 U.S.C. § 284, and an Ongoing Royalty. Doc. Nos. 600, 1-4; 864, 2-3.*fn1 Thus, the recitation that follows only covers events that have occurred since the filing of those Opinions, and/or are directly relevant to the instant Motions.

Varian has moved for Judgment as a Matter of Law five times throughout the course of the three-part trial. Each time, the Motion was made orally (in open court) and was followed by a written Motion and Brief in Support thereof. Doc. Nos. 522, 523, 536, 537, 541, 651, 652, 658, 659, 665, 846, 847, and 852. This Court has denied all five Motions, both orally (in open court) and subsequently, by Text Order. Doc. Nos. 541, 665, 852 (Text Orders of January 25, January 27, February 22, February 23, and April 17, 2012). The Court has since entered an Amended Final Judgment. Doc. Nos. 871, 888. Varian posted a supersedeas appeal bond. Doc. No. 874. The Court has appointed a Special Master to oversee limited discovery on the issue of attorneys fees and to provide a Report and Recommendation consistent therewith. Doc. No. 879.

Currently before the Court is Varian's Renewed Motion for Judgment as a Matter of Law (Doc. No. 880) and the Motion for New Trial (Doc. No. 882).*fn2 After careful consideration of the Motions, Briefs in Support (Doc. Nos. 881 and 884), Pitt's Reponses in Opposition (Doc. Nos. 896 and 897), Varian's Replies (Doc. Nos. 901 and 902), Pitt's Sur-Reply (Doc. No. 903), and Varian's Response In Opposition to Pitt's Sur-Reply (Doc. No. 908), and for the reasons that follow, Varian's Renewed Motion for Judgment as a Matter of Law (Doc. No. 880) and Motion for New Trial (Doc. No. 882) will be DENIED.

II. Judgment as a Matter of Law

A. Standard of Review

In patent infringement cases, the law of the regional circuit (in this case, the United States Court of Appeals for the Third Circuit) is applied when considering motions for judgment as a matter of law. Amgen Inc. v. F. Hoffman-LA Roche Ltd., 580 F.3d 1340, 1352 (Fed. Cir. 2009) (citations omitted). Defendant is entitled to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), if after the close of evidence, "there is no legally sufficient evidentiary basis for a reasonable jury to find for" Plaintiff. Rhone Poulenc Rorer Pharms. Inc. v. Newman Glass Works, 112 F.3d 695, 697 (3d Cir. 1997). If the record contains even "the minimum quantum of evidence upon which a jury might reasonably afford relief," the verdict must be sustained. Buczek v. Continental Cas. Ins. Co., 378 F.3d 284, 288 (3d Cir. 2004) (quoting Glenn Distribs. Corp. v. Carlisle Plastics, Inc., 297 F.3d 294, 299 (3d Cir. 2002)); see also Marion v. TDI Inc., 591 F.3d 137, 146 (3d Cir. 2010); Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009).

To prevail on a renewed motion for judgment as a matter of law following a jury trial, the moving party "must show that the jury's findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusions implied [by] the jury's verdict cannot in law be supported by those findings." Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998) (quoting Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed. Cir. 1984)). A motion for judgment as a matter of law may be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability. Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993).

As the United States Court of Appeals for the Third Circuit summarized:

In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir. 1992), cert. denied, 507 U.S. 921 (1993).

Although judgment as a matter of law should be granted sparingly, a scintilla of evidence is not enough to sustain a verdict of liability. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). "The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978) (citation omitted) (quotation omitted).

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (parallel citations omitted); see also Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); Perkin-Elmer Corp., 732 F.2d at 893.

B. Varian Is Not Entitled to Judgment as a Matter of Law

In its Renewed Motion for Judgment as a Matter of Law (Doc. No. 880), Varian advances the same arguments that it made in its Motions for Judgment as a Matter of Law during each segment of the three-part trial, all of which were previously rejected by this Court. Nonetheless, these arguments are addressed seriatim.

1. There Was a Legally Sufficient Evidentiary Basis for the Jury's Finding that Certain Claims of the '554 Patent Are Valid

a. There Was a Legally Sufficient Evidentiary Basis for the Jury's Finding that Certain Claims Are Not Anticipated

Varian first argues that there was not a sufficient evidentiary basis to find that the disputed claims of Pitt's '554 patent are not anticipated by certain prior art references. Doc. No. 881, 7-10. Varian argues that Peltola anticipates certain claims of the '554 patent. This argument is premised upon the assumption that the Peltola laser line is an image of the patient, as the Court construed that term, and/or the Peltola filter permited an image of the patient to be seen on the monitor. The jury heard testimony on this issue during both the willfulness and invalidity portions of the trial. During the willfulness portion of the trial, Dr. Siochi testified about an experiment that he allegedly witnessed at the University of Maryland with respect to the Peltola filter. Doc. No. 540, 149. That experiment confirmed the conclusion Dr. Siochi outlined in his expert report, that the filter did not allow for an image of the patient to be viewed on the monitor. Id. at 136-37. He further testified about the Peltola laser line and filter using his knowledge of optics, concluding that neither the laser line nor image seen through the filter constituted an image of the patient. Id. at 133, 135.

Defense counsel conducted an extensive cross-examination of Dr. Siochi in which Dr. Siochi further testified about the Peltola laser line and filter, and offered testimony of Varian's own expert, Dr. Murphy. Varian now asks this Court to weigh the credibility of the two experts (Drs. Siochi and Murphy). The evidence presented certainly constitutes a legally sufficient evidentiary basis upon which the jury could reasonably conclude that the Peltola laser line and/or the image allowed through the Peltola filter was not an image of the patient. Thus, without the Peltola laser line or image seen through the Peltola filter being considered an image of the patient, the claims are not anticipated by Peltola. The Court will decline Defendant's attempt to seek a review of the credibility determinations made by the jury with regard to the expert testimony. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir. 1992), cert. denied, 507 U.S. 921 (1993).

Varian's argument that Claim 20 is anticipated by Baroni is also without merit. Dr. Siochi testified as to why Baroni does not anticipate Claim 20. Doc. No. 570, 116. Varian's arguments as to the dependent claims all rest on the assumption that the independent claims are anticipated. Since the Court finds that Varian is not entitled to judgment as a matter of law with regard to its arguments that the independent claims are anticipated, there is no basis for a conclusion that the dependent claims of the '554 patent are anticipated. Thus, there was a legally sufficiently evidentiary basis for the jury's finding that certain claims are not anticipated.

b. There Was a Legally Sufficient Evidentiary Basis for the Jury's Finding that Certain Claims Are Not Obvious

Varian argues, alternatively, that there was also no evidentiary basis upon which to find certain claims of the '554 patent are not obvious. Doc. No. 881, 11-13. In support thereof, Varian posits that Dr. Siochi did not address every argument and reference made by Dr. Murphy as to obviousness. Dr. Siochi adequately explained his expert opinion that the '554 patent was not obvious. For example, he discussed the timing problems with the prior art compared with the '554 patent. Doc. No. 572, 26-28. In short, Dr. Siochi's testimony created a legally sufficient evidentiary basis for the jury's finding that the claims of the '554 patent are not obvious.

Furthermore, it is the opinion of this Court that Varian has not proven by clear and convincing evidence that the '554 patent claims were obvious. Dr. Murphy's testimony actually worked backwards from the '554 patent in order to show that all of the elements were present in the prior art, and thereby obvious. It was necessary for him to explain why someone skilled in the art would have thought to combine the elements of the prior art at the time of the filing of the '554 patent. This Court finds that Dr. Murphy failed to explain why a person with ordinary skill in the art would combine all of the elements that were present in the prior art references that Dr. Murphy cited during his testimony. Therefore, Varian is not entitled to judgment as a matter of law on this issue.

c. There Was a Legally Sufficient Evidentiary Basis for the Jury's Finding that Certain Claims Are Enabled

Next, Varian argues that there was not a sufficient evidentiary basis to find that the '554 patent claims are enabled. Doc. No. 881, 13. Varian now argues that the testimony of Dr. Siochi, which it attempted (unsuccessfully) to have excluded from the invalidity portion of the trial, shows that the '554 patent claims are not enabled. Compare Doc. No. 881, 13 with Doc. No. 713, 2-4. However, Dr. Siochi testified that the '554 patent does, in fact, teach how the "interface" works. Dr. Siochi testified that a person of ordinary skill in the art would be able to create the "interface" using the '554 patent and limited testing. Doc. No. 570, 123-24.

Furthermore, Dr. Murphy's expert report with regards to the "interface" was only applicable to Claim 38. Doc. No. 896-1, 6. Varian seeks, therefore, this Court to weigh the testimony of the two experts. However, the Court will not, and cannot, engage in the weighing of the experts' opinions presented during the trial, because to do so would constitute a judgment on the credibility of the witness. Fineman, 980 F.2d at 190. Thus, there was ...


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