Nordock, Inc. v. Sys., Inc., Case No. 11-C-118

• Decision Date: 31 July 2014
• Docket Number: Case No. 11-C-118
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: NORDOCK, INC., Plaintiff/Counterclaim-Defendant, v. SYSTEMS, INC., Defendant/Counterclaimant.

NORDOCK, INC., Plaintiff/Counterclaim-Defendant, v. SYSTEMS, INC., Defendant/Counterclaimant.

Case No. 11-C-118

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

July 31, 2014

DECISION AND ORDER

On March 27, 2013, a jury returned a special verdict finding that Defendant Systems, Inc. ("Systems") infringed on Plaintiff Nordock, Inc.'s ("Nordock") U.S. Design Patent Number D579,754 (the "'754 Patent") for a lip, lug, and hinge plate for dock levelers, with respect to Systems' hydraulic dock levelers (the "LHP" and "LHD" levelers). The jury awarded Nordock $46,825 as a reasonable royalty for the sale of the infringing LHP and LHD levelers. The jury also found that Systems' mechanical dock levelers (the "LMP" and "LMD" levelers) did not infringe on Nordock's patent. Both parties filed motions for amendment of the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (ECF Nos. 179 & 180) and motions for orders to show cause (ECF Nos. 195 & 199). The motions are addressed herein.

Rule 59(e) Standard

The Federal Court of Appeals applies regional circuit law in reviewing the denial of a motion for a new trial. Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d784, 798 (Fed. Cir. 2010). To prevail on a Rule 59(e) motion, "a party must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment." Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (internal quotation marks omitted). The Seventh Circuit has defined "manifest error" as "the wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation marks omitted).

A Rule 59(e) motion "is not a fresh opportunity to present evidence that could have been presented earlier." Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th Cir. 2013). In other words, Rule 59(e) "does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment." Mow v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996).

Rule 59(e) permits a court to amend a judgment. However, it is not a proper vehicle through which to amend the answers provided by a jury on a verdict form because the verdict form is not part of the judgment entered by the Clerk of Court. See Frazier v. Boyle, 206 F.R.D. 480, 491-92 (E.D. Wis. 2002).

"Rule 59(a), in a bit of a circular way, allows new trials in cases where new trials have been traditionally allowed at law." ABM Mktg., Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 543 (7th Cir. 2003) (citing Fed. R. Civ. P. 59(a)). A "motion for a new trial should succeed only if the verdict is against the manifest weight of theevidence." Id. at 545 (quotation and citation omitted); see also Aero Prods. Int'l, Inc. v. Intex Recreation Corp., 466 F.3d 1000, 1016-17 (Fed. Cir. 2006) ("In the Seventh Circuit, a trial court may grant a new trial 'where the verdict is against the clear weight of the evidence,' while the court's ruling on a motion for a new trial is reversed only where there is a clear abuse of discretion.") (citation omitted).

To satisfy this standard, the movant must demonstrate that no rational jury could have rendered a verdict against it. See King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006). When making this evaluation, the Court views the evidence in a light most favorable to the non-movant and cannot re-weigh the evidence or make credibility determinations. Id. The Court will sustain the verdict where a reasonable basis exists to support the jury's verdict. Id. "A new trial may be granted only if the jury's verdict is against the manifest weight of the evidence," id., or if the trial was "unfair to the moving party." Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997).

Systems

Systems seeks amendment of the judgment contending that no evidence was presented at trial regarding its accused 6½-foot dock levelers and therefore the jury's finding of infringement as to those dock levelers is unsupported by any evidence and must be discounted.

Having considered the testimony and evidence submitted at trial, the Court denies Systems' motion because, viewed in the light most favorable to Nordock, the trial testimony and exhibits support the jury's finding that Systems' 6-, 6½-, and 7-footwide LHP/LHD levelers infringed Nordock's '754 Patent.

Nordock's '754 Patent pertains to the "front end" of a dock leveler. (Trial Exs. 18, 35, 36 and 85.) The jury was shown views of the front end of Systems' 6- and 7-foot wide LHP/LHD levelers and compared those views to the corresponding views and overall appearance of the '754 Patent. (Trial Exs. 12-13, 31-37, 85, 1004 and 1009.) The jury was also shown evidence (Trial. Ex. 12, Tab 1, Bates No. BERO 0532.) and heard testimony from Denis Gleason ("Gleason), the president and CEO of Nordock, that the 6-foot leveler and the middle 6-foot portion of the 6½- and 7-foot levelers are the same. (Opp'n to Systems' Mot. Alter or Amend, Ex. A (Gleason Trial Tr.) 4:19 to 5:9.) (ECF No. 189-1.) This is because the three different widths of levelers are made on the same welding fixture. One set of fixtures is used for "the entire range of dock leveler sizes and capacities" for a particular model. (Gleason Trial Tr. 3:14-16). Thus, the middle 6-foot portion of a 7-foot wide leveler is identical to a 6-foot leveler. (Gleason Trial Tr. 4:24-25 and Tr. 6:3-9). Systems offered no evidence to the contrary, and the jury could reasonably infer from the use of the same welding fixtures that there is no significant difference between the 6-, 6½- and 7-foot wide levelers.

Systems' brochures showed 6- and 7-foot LHP/LHD levelers, but not its 6½-foot levelers. (See Trial Exs. 12-14.) In addition, Nordock and other manufacturers had brochures showing their 6- and 7-foot levelers (See Trial Exs. 1-11), and none of them showed a 6½-foot leveler. The jury could reasonably infer from the omission ofthe 6½-foot leveler from Nordock's, Systems' and third party brochures that the 6½-foot levelers are substantially similar to the 6- and 7-foot levelers.

Circumstantial evidence can support a finding of infringement. Golden Blount, Inc. v. Robert H. Peterson Co., 438 F.3d 1354, 1362 (Fed. Cir. 2006) (citing Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1272 (Fed. Cir. 1986) (holding that circumstantial evidence of extensive sales and dissemination of an instruction sheet can support a finding of direct infringement by the customer); Alco Standard Corp. v. Tenn. Valley Auth., 808 F.2d 1490, 1502-03 (Fed. Cir. 1986) ("Although the evidence of infringement is circumstantial, that does not make it any less credible or persuasive.")). Thus, the Court concludes that a reasonable basis exists to support the jury's verdict of infringement with respect to the 6½-foot dock levelers. Systems' motion for Rule 59 relief is denied.

Nordock

Nordock seeks amendment of the judgment pursuant to Rule 59(e) to include 35 U.S.C. § 289 damages resulting from Systems' unauthorized infringement of the '754 Patent or, in the alternative, a new trial on damages. Nordock contends that the jury verdict failed to compensate Nordock for its § 289 damages. Nordock also requests an award of pre- and post-judgment interest as sought by its Complaint.

Damages

With respect to damages in patent cases, regional circuit law applies to procedural issues and Federal Circuit law applies to substantive and procedural issues"pertaining to patent law." Wordtech Sys., Inc. v. Integrated Networks Solutions, Inc., 609 F.3d 1308, 1318 (Fed. Cir. 2010) (citing Aero Prods. Int'l, 466 F.3d at 1016; see also Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1381 (Fed. Cir. 2002) (noting that Federal Circuit law controls "the distinctive characteristics of patent damages law")).

"Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." Catalina Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1289 (Fed. Cir. 2002) (quoting 35 U.S.C. § 284 (1994)). A design patentee may recover damages under 35 U.S.C. § 284 or under 35 U.S.C. § 289, entitled "Additional remedy for infringement of design patent," which states:

Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.

Nothing in this section shall prevent, lessen, or impeach any other remedy which an owner of an infringed patent has under the provisions of this title, but he shall not twice recover the profit made from the infringement.

Id. at 1290.

A reasonable royalty is the statutory floor for damages in an infringement case. See 35 U.S.C. § 284. Versata Software, Inc. v. SAP Am., Inc., 717 F.3d 1255, 1267(Fed. Cir. 2013) cert. denied, 134 S. Ct. 1013 (2014). A reasonable royalty may be calculated using one of two baselines: "an established royalty, if there is one, or if not, upon the supposed result of hypothetical negotiations between the plaintiff and defendant." Id. (citations omitted). "The hypothetical negotiation seeks to determine the terms of the license agreement the parties would have reached had they negotiated at arm's length when infringement began." Id.

Nordock's motion is denied because the jury reasonably based its verdict on the evidence presented. The jury...