ABT Systems, LLC et al v. Emerson Climate Technologies, Inc. et al

Filing 508

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion to re-open the damages case for the purpose of correcting the infringing sales base is DENIED. (Doc. No. 471). Signed by District Judge Audrey G. Fleissig on 6/26/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ABT SYSTEMS, LLC, et al.,
Plaintiffs / Counterclaim Defendants,
vs.
EMERSON ELECTRIC CO.,
Defendant / Counterclaim Plaintiff.

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Case No. 4:11CV00374 AGF

MEMORANDUM AND ORDER
This patent infringement case is before the Court on the post-trial motion of Plaintiffs
to re-open the damages case for the purpose of correcting the infringing sales base (Doc. No.
471). For the reasons set forth below, the motion shall be denied.
This action was filed on November 9, 2009. An eight-day jury trial was conducted
from February 11-21, 2013, on the issue of whether Defendant had infringed on claims in two
patents owned by Plaintiffs related to thermostats. On the first day of trial, the Court granted
Defendant’s motion in limine to exclude Plaintiffs’ expert evidence that Plaintiffs had engaged
in “marking” products incorporating the two patents at issue and thereby provided Defendant
with constructive notice of the patents prior to the date the action was filed.1
On February 20, 2013, the parties stipulated before the jury that “after November 5,
2009 [Defendant] sold a total of 138,391 accused thermostats and that the total revenue from
those sales was $13,735,283.” (Doc. No. 486 at 3.) The end date of April 30, 2011 was
agreed to by Plaintiffs, and was based on the only disclosures they had made in their trial
materials and expert reports. Without objection by either side, the jury was instructed that the
date of the lawsuit, November 5, 2009, was the date for the start of recoverable damages, and
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The Court ruled that this evidence was inadmissible because it was based on hearsay.

that the parties agreed that Defendant sold a total of 138,391 accused thermostats “after this
date” (and that the total revenue for these sales was $13,735,283). (Doc. No. 464 at 28.) In
the verdict form, also agreed to by the parties, the jury was instructed that it could only
consider damages from November 5, 2009, the date the lawsuit was filed, to April 30, 2011.
(Doc. No. 466 at 4.)
On February 21, 2013, the jury returned its verdict finding that Defendant had infringed
certain claims of the two patents at issue. The jury found that the reasonable royalty rate for
the infringing sales was $2.25 per unit, for a total of $311,379, as the amount that would
reasonably compensate Plaintiffs for the infringement the jury found. Still to be determined
by the Court before judgment can be entered is whether Defendant was a willful infringer and
whether there was any inequitable conduct on Plaintiffs’ part.
In its present motion to reopen, filed on March 7, 2013, Plaintiffs argue that the jury
was incorrectly instructed to consider the number of infringing sales from the filing date of the
lawsuit through April 30, 2011. Rather, the jury should have been told to consider the number
of infringing sales up to the time of trial, which Plaintiffs assert was 268,010. Plaintiffs
would like to re-open the case “in the interests of justice,” for the limited purpose of applying
the $2.25 per unit royalty rate to 268,010 units, and ruling that compensatory damages were in
the amount of the resulting total (of $603,022.50). Plaintiffs fault Defendant for producing
relevant sales data late – on January 19 and 30, 2013 – and that the data was presented by
means of confusing spreadsheets. Plaintiffs assert that they could not properly analyze the
spreadsheets until after they rested their case in chief. Plaintiffs also assert that they agreed to
a stipulation as to the infringing sales base of 138,391 “to avoid having its entire damages case
dismissed.” (Doc. No. 472 at 7.)
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In their reply memorandum, Plaintiffs state that 268,010 may not be the true number of
relevant infringing sales, and that only Defendant knows the true number. Plaintiffs therefore
ask the Court to reopen the damages case, not for the purpose of applying the jury’s $2.25
royalty rate to 268,010 units, but for the purpose of recalculating the infringing sales base and
modifying the jury verdict accordingly.
Plaintiffs assert that the Court has the inherent authority to grant the relief Plaintiffs
seek, and also has such authority under Federal Rule of Civil Procedure 60(b).
The Court agrees with Defendant that Plaintiffs’ realization that they should have done
things differently during trial does not provide the Court with a basis to reopen the damages
case two weeks after the jury returned its verdict. Plaintiffs had ample opportunity prior to
trial to seek relief with regard to any tardy disclosures. If Defendant’s sales evidence was not
clear, the time to clarify it was before or even during trial, not after the jury returned its verdict.
In none of the cases cited by Plaintiffs did a court reopen a case for additional evidence on
damages, after the jury had been discharged. Nor have Plaintiffs cited a case in which Rule
60(b) was applied in a context similar to the one here.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to re-open the damages case for
the purpose of correcting the infringing sales base is DENIED. (Doc. No. 471).

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2013.

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