THE DOW CHEMICAL CO. V. NOVA CHEMICALS CORP., (2012)

Extract

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THE DOW CHEMICAL CO. V. NOVA CHEMICALS CORP., (2012)

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

THE DOW CHEMICAL COMPANY,

Plaintiff-Appellee,

v.

NOVA CHEMICALS CORPORATION (CANADA) AND NOVA CHEMICALS INC. (DELAWARE),

Defendants-Appellants.

2010-1526

Appeal from the United States District Court for the District of Delaware in case no. 05-CV-0737, Judge Leonard P. Stark.

Decided: January 24, 2012

HENRY J. ROPER, Jenner & Block, LLP, of Chicago, Illinois, argued for plaintiff-appellee. With him on the brief were AARON A. BARLOW and PAUL D. MARGOLIS. Of counsel on the brief were RAYMOND N. NIMROD, Quinn

Emanuel Urquhart & Sullivan, of New York, New York.

DOW CHEMICAL v. NOVA CHEMICALS 2

DONALD R. DUNNER, Finnegan, Henderson, Farabow,

Garrett & Dunner, LLP, of Washington, DC, argued for defendants-appellants. With him on the brief were DARREL C. KARL and MARK J. FELDSTEIN. Of counsel on the brief were H. WOODRUFF TURNER and DAVID R.

COHEN, K&L Gates, LLP, of Pittsburgh, Pennsylvania. Of counsel were RONALD A. BLEEKER, FORD F. FARABOW, JR.,

MARTIN I. FUCHS and JOANN M. NETH.

Before LINN, PROST, and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Dissenting opinion filed by Circuit Judge REYNA.

PROST, Circuit Judge.

Nova Chemicals Corporation ("Nova") appeals from the district court's denial of its motion for judgment as a matter of law. Nova argues that the district court should have, in the first place, found that the Dow Chemical Company ("Dow") lacked standing to bring this suit. Nova also argues that the district court should have set aside a jury verdict of infringement in Dow's favor and instead found that the patents asserted by Dow are invalid for indefiniteness and lack of an adequate written description and are not infringed. Because we see no error in the district court's standing and invalidity analyses, and because substantial evidence supports the jury's infringement finding, we affirm.

BACKGROUND

Dow brought this suit to enforce U.S. Patent No. 5,847,053 ("'053 patent") and U.S. Patent No. 6,111,023 ("'023 patent") (collectively, "the patents in suit"). The patents in suit claim a new kind of plastic that is stronger 3

DOW CHEMICAL v. NOVA CHEMICALS

than conventional plastics, which allows, for example, using thinner films (less plastic) for the same purpose. Dow markets its invention as ELITE. Nova's competing product is named SURPASS. Dow claimed in the district court that SURPASS infringes the patents in suit. Nova put on a three-part defense. First, it argued that Dow lacked standing to enforce the patents in suit. Second, it argued that the patents in suit were invalid for indefiniteness and lack of an adequate written description.1

Third, it argued that SURPASS did not infringe the patents in suit.

Nova did not prevail on any of its arguments in the district court. The district court held a bench trial to resolve the standing issue and found that Dow had standing to enforce the patents in suit. Dow Chem. Co. v. Nova Chems. Corp., 726 F. Supp. 2d 459, 463-64 (D. Del. 2010). With respect to Nova's indefiniteness argument, the district court found that the patents were not indefinite as a matter of law and construed the claims. The district court nonetheless allowed the jury to consider whether the patents were invalid for indefiniteness and lack of an adequate written description. The infringement issue was also submitted to the jury. In the end, the jury found the patents in suit valid and infringed and awarded approximately $61.7 million in damages to Dow for lost profits and reasonable royalties. The district court subsequently denied Nova's renewed motion for judgment as a matter of law and entered judgment in line with the jury's verdict. This appeal ensued. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

1 Nova also argued that the patents in suit were invalid for obviousness. The jury found that the patents were not obvious. Nova does not appeal that determination.

DOW CHEMICAL v. NOVA CHEMICALS 4

ANALYSIS

Nova makes three main arguments on appeal. First, it argues that Dow lacks standing to enforce the patents in suit. Second, it argues that the patents in suit are invalid for indefiniteness and lack of an adequate written description. Third, it argues that the jury's verdict of infringement is not supported by substantial evidence. We address each argument in turn below.

A. STANDING

The standing issue concerns the ownership of the patents in suit. There is no...

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