Nordock, Inc. v. Systems Inc. , 803 F.3d 1344 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
NORDOCK, INC.,
Plaintiff-Appellant
v.
SYSTEMS INC., DBA POWERAMP, DBA DLM INC.,
DBA MCGUIRE,
Defendant-Cross-Appellant
______________________
2014-1762, -1795
______________________
Appeals from the United States District Court for the
Eastern District of Wisconsin in No. 2:11-cv-00118-RTR,
Chief Judge Rudolph T. Randa.
______________________
Decided: September 29, 2015
______________________
JEFFREY SCOTT SOKOL, Sokol Law Office, Milwaukee,
WI, argued for plaintiff-appellant.
PHILIP P. MANN, Mann Law Group, Seattle, WA, ar-
gued for defendant-cross-appellant. Also represented by
TIMOTHY JOHN BILLICK, I; JOHN WHITAKER, Whitaker Law
Group, Seattle, WA.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
2 NORDOCK, INC. v. SYSTEMS INC.
O’MALLEY, Circuit Judge.
Nordock, Inc. (“Nordock”) filed suit against Systems,
Inc. (“Systems”) in the United States District Court for
the Eastern District of Wisconsin alleging infringement of
U.S. Design Patent No. D579,754 (“the D’754 Patent”),
which claims the ornamental design of a lip and hinge
plate for a dock leveler. A jury found that Systems’ hy-
draulic dock levelers infringe the D’754 Patent, and that
the patent is not invalid. The district court entered
judgment awarding Nordock $46,825 in damages as a
reasonable royalty.
Both parties filed post-trial motions to amend the
judgment pursuant to Rule 59 of the Federal Rules of
Civil Procedure. Specifically, Nordock filed a motion to
amend the judgment regarding damages, or in the alter-
native, for a new trial. Systems also sought to amend the
judgment, arguing that there was insufficient evidence to
support the jury’s finding of infringement with respect to
Systems’ 6 ½ foot dock levelers. The district court denied
both motions. Nordock, Inc. v. Sys., Inc., No. 11-C-118,
2014 WL 3786277 (E.D. Wis. July 31, 2014) (“Rule 59
Decision”).
Nordock appeals the district court’s decision denying
its request for a new trial on damages. Systems cross-
appeals from the court’s decisions denying its oral motion
for judgment as a matter of law (“JMOL”) as to validity of
the D’754 Patent and denying its post-trial Rule 59(e)
motion. Because we find that the district court erred in
its assessment of design patent damages under 35 U.S.C.
§ 289, we vacate the damages award and remand for a
new trial on damages. With respect to Systems’ cross-
appeal, we affirm the district court’s decisions: (1) denying
Systems’ motion for JMOL as to the validity of the D’754
Patent; and (2) denying Systems’ Rule 59(e) motion with
respect to the 6 ½ foot dock levelers. Accordingly, we
NORDOCK, INC. v. SYSTEMS INC. 3
affirm in part, vacate in part, and remand for further
proceedings.
BACKGROUND
Nordock and Systems are rivals in the loading dock
device industry. Nordock Inc. v. Sys. Inc., 927 F. Supp. 2d
577, 582 (E.D. Wis. 2013). “Both companies design,
manufacture, and sell dock levelers which are mechanical
devices used to create a bridge between loading dock
surfaces and the surfaces of truck load beds.” Id.
On December 23, 2002, Denis Gleason, the President
of Nordock, filed U.S. Patent Application No. 10/328,279
(“the ’279 Application”), which ultimately issued as U.S.
Patent No. 6,834,409 (“the ’409 Patent”). The ’409 Patent
shows a dock leveler with a deck lift assembly that “has a
durable combined lip lug and header plate hinge construc-
tion.” ’409 Patent, col. 3, ll. 15-16. Although Nordock
applied for utility patent protection for the “lug hinge
design,” it abandoned prosecution after the application
was rejected over the prior art. Nordock, 927 F. Supp. 2d
at 588.
A. The D’754 Patent
The D’754 Patent—entitled “Lip and Hinge Plate for a
Dock Leveler”—was filed as a divisional application
claiming priority to the ’279 Application. As noted, the
D’754 Patent claims the ornamental design of a lip and
hinge plate for a dock leveler, as shown and described
therein. Figure 1, shown below, provides a general per-
spective view of the front end of the leveler as claimed:
4 NORDOCK, INC. v. SYSTEMS INC.
The D’754 Patent states that Figure 1 “is a perspective
view showing the lip and hinge plate for a dock leveler
with the lip extended, and the hinge plate secured to a
deck frame shown in broken lines.”
B. Systems’ Accused Devices
Systems has manufactured and sold dock levelers
since the 1960s. Nordock, 927 F. Supp. 2d at 594. For
approximately 40 years, Systems made its levelers with a
“piano style” hinge. Id. Systems’ President—Edward
McGuire—testified that Systems moved to using a header
plate and lug style hinge design “for cost reasons,” and
began selling the accused levelers in October 2005. Id.
In its complaint, Nordock accused three different sizes
of Systems’ mechanically operated dock levelers (“LMP”
and “LMD”), and three different sizes of hydraulically
operated dock levelers (“LHP” and “LHD”) of infringing
the D’754 Patent. The sizes are based on the width of the
levelers, which are available in widths of 6 feet, 6 ½ feet,
NORDOCK, INC. v. SYSTEMS INC. 5
and 7 feet. According to Systems’ expert—Richard F.
Bero—Systems’ average sale price for an LHP/LHD
leveler is $2,516, and its operating profit per unit is $433.
Joint Appendix (“J.A.”) 6552. Its average sale price for an
LMP/LMD leveler is $1,840, with an operating profit per
unit of $215. Id.
C. Procedural History
On January 28, 2011, Nordock filed suit against Sys-
tems alleging that it infringes the D’754 Patent by mak-
ing, offering for sale, and selling hydraulic and
mechanical dock levelers incorporating the claimed lip lug
and hinge plate design. Nordock further alleged that the
infringement is willful.
Systems filed an Answer and Counterclaim for de-
claratory judgment of non-infringement and invalidity. In
its counterclaim, Systems alleged that the D’754 Patent is
not infringed and is invalid for failure to comply with the
standards of patentability and enforceability set forth in
35 U.S.C. §§ 102, 103, and 112. Systems also asserted a
number of affirmative defenses, including laches, estop-
pel, and unclean hands.
1. Cross-Motions for Summary Judgment
The parties filed cross-motions for summary judgment
in September 2012. Specifically, Nordock moved for
summary judgment as to validity and enforceability of the
D’754 Patent. In that motion, Nordock argued that the
design has sufficient ornamentation, the D’754 Patent is
not barred by the claims of related utility patent applica-
tions, the design is valid under 35 U.S.C. §§ 102, 103, and
112, and enforcement is not barred by reason of laches,
estoppel, or unclean hands. Nordock, 927 F. Supp. 2d at
589.
For its part, Systems moved for summary judgment of
invalidity and noninfringement, arguing that: (1) the
D’754 Patent is invalid because it is primarily functional
6 NORDOCK, INC. v. SYSTEMS INC.
and contains no protectable ornamental features; (2) to
the extent there are any features that are not purely
functional, those features are obvious in view of the prior
art; and (3) a comparison between the patented design
and Systems’ products reveals that Systems does not
infringe. Systems requested that the district court hold a
hearing on the motion and construe the scope of the D’754
Patent claim.
The district court conducted a claim construction
hearing on January 30, 2013. Id. at 587. Shortly thereaf-
ter, the court issued a written decision addressing several
motions, including the parties’ cross-motions for summary
judgment. In relevant part, the court construed the single
claim of the D’754 Patent as “[t]he ornamental design of a
lip and hinge plate for a dock leveler, as shown and de-
scribed,” including the seven figures (drawings) of the
patent. Id. at 588. The court explained that “the broken
lines in the figures do not form any part of the claim,” and
that:
[t]he ornamental design of the lip and hinge plate
as shown and described includes nine pairs of
tear-drop shaped lugs, attached to the header
plate and lip to form the hinge, and the pin that is
threaded between the lug pairs. The shape of the
lug attached to the header plate is not identical to
that attached to the lip, and is elongated as shown
in Figures 6 and 7 to close the gap between it and
the deck.
Id.
Next, the court noted that the design incorporates
four primarily utilitarian elements: the lugs, the pin, the
header plate, and the lip. Id. at 589. The court found
that the “relative positions of the header plate and the lip
which are at the front portion of the dock leveler are
dictated by the function of a dock leveler; that is, to create
a bridge between the truck and the loading dock.” Id.
NORDOCK, INC. v. SYSTEMS INC. 7
And the “lugs and the pin form a hinge which is essential
to the function of the dock leveler.” Id. The court found,
however, that there are ornamental aspects of the design:
“[w]hile the header plate is used to tie the supporting
beams and create a box type of structure, there are alter-
natives. There are dock levelers that do not have header
plates, and there are dock levelers with partially open
fronts, and other styles.” Id. (internal citation omitted).
And, there are hinges that have no lugs. The court fur-
ther found that the “shape, spacing, pairing and the
difference in shapes between the lugs attached to the
header plate and the lip are also ornamental features of
the ’754 patent.” Id.
Turning to the parties’ motions for summary judg-
ment, the court granted Nordock’s motion with respect to
anticipation, obviousness, prosecution estoppel, laches,
equitable estoppel, and unclean hands. Id. at 611. The
court found that summary judgment was not appropriate
with respect to functionality, however. Id. at 605. In
reaching this conclusion, the court noted that:
(1) “Nordock’s advertising touts the functional qualities of
its lip, lug and header plate design;” (2) “there is a great
variation in dock leveler design;” (3) there is a “genuine
dispute of material fact regarding whether many ele-
ments in the design are non-functional;” and
(4) “Nordock’s design is not the only way to do things.” Id.
2. Trial
The district court conducted a jury trial from March
18 through March 26, 2013, on the issues of infringement,
validity, and damages. At trial, Nordock’s damages
expert—Dr. Stan V. Smith—testified that Systems’ net
profit for the sale of 1,514 hydraulic levelers (LHP/LHD)
was $912,201. J.A. 6009; J.A. 6373. Systems’ damages
expert—Richard F. Bero—testified that “royalty was the
proper form of damages, that $15 per allegedly infringing
dock leveler was the appropriate amount of royalty, and
8 NORDOCK, INC. v. SYSTEMS INC.
that, based on the 6,000 accused units, total damages
were about $91,650.” Rule 59 Decision, 2014 WL
3786277, at *4. In the alternative, Bero testified that
Systems’ profit on the accused lip and hinge plate was
“less than $15 per unit, so lost profits would have been
less than $91,650.” Id.
At the close of Nordock’s case in chief and again at the
conclusion of all of the trial testimony, Systems moved for
JMOL that the D’754 Patent is invalid because it is
functional, and that no infringement could be found with
respect to Systems’ 6 ½ foot hydraulic dock leveler be-
cause there was no evidence of that leveler presented at
trial. The district court denied those motions on the
record and allowed the case to go to the jury.
The jury returned a mixed verdict, finding that Sys-
tems’ LHP and LHD levelers infringed the D’754 Patent,
but that the LMP and LMD levelers were not infringing.
The jury awarded Nordock $46,825 as a reasonable royal-
ty, and indicated on the verdict form that Systems’ profits
were $0. The jury also found that Systems failed to prove
that the D’754 Patent is invalid. As discussed in more
detail below, as soon as the verdict was returned, Systems
indicated a desire to renew its earlier motions.
3. Written Post-Trial Motions
After trial, both parties filed motions to amend the
judgment pursuant to Rule 59(e). Systems argued that,
because there was no evidence presented at trial regard-
ing its 6 ½ foot dock leveler, the jury’s finding of in-
fringement as to that particular leveler was unsupported
by any evidence and must be discounted. Rule 59 Deci-
sion, 2014 WL 3786277, at *2. Systems did not file a
written motion for JMOL. Nordock filed a motion to
amend the judgment regarding damages, or in the alter-
native, for a new trial on damages. Specifically, Nordock
argued that, pursuant to 35 U.S.C. § 289, it was entitled
NORDOCK, INC. v. SYSTEMS INC. 9
to recover Systems’ profits for its sales of the LHP and
LHD levelers found to infringe.
On July 31, 2014, the district court issued an order
that: (1) denied Systems’ Rule 59(e) motion; and
(2) granted Nordock’s Rule 59(e) motion with respect to
pre-judgment interest and its entitlement to post-
judgment interest under 28 U.S.C. § 1961, but denied it in
all other respects. With respect to Systems’ motion, the
court found that “the trial testimony and exhibits support
the jury’s finding that Systems’ 6-, 6 ½-, and 7-foot wide
LHP/LHD levelers infringed Nordock’s ’754 Patent.” Id.
at *2.
Next, the court denied Nordock’s motion as to § 289
damages “because the jury reasonably based its verdict on
the evidence presented.” Id. at *4. The jury was instruct-
ed that it “could award Nordock compensatory damages in
the form of its own lost profits or a reasonable royalty, or
it could recover Systems’ profits as a measure of potential
recovery with respect [to] the sale of each unit of an
infringing product.” Id. The court explained that “the
jury heard testimony regarding lost profits, [but] it chose
to award a reasonable royalty.” Id. The court concluded,
therefore, that the jury’s verdict “was consistent with the
instructions, and a reasonable basis exists in the testimo-
ny and evidence presented at trial to support the jury
verdict.” Id.
4. Final Judgment
On July 31, 2014, the district court entered an
amended final judgment in favor of Nordock and against
Systems in the amount of $46,825 for Systems’ non-willful
infringement of Nordock’s D’754 Patent with regard to
Systems’ LHP and LHD Series dock levelers. The amend-
ed judgment awarded Nordock an additional $10,170.09
in prejudgment interest.
10 NORDOCK, INC. v. SYSTEMS INC.
Nordock filed its notice of appeal and Systems filed its
notice of cross-appeal. We have jurisdiction under 28
U.S.C. § 1295(a)(1).
DISCUSSION
I. NORDOCK’S APPEAL
On appeal, Nordock argues that the district court
erred when it denied Nordock’s motion for a new trial on
§ 289 damages. We apply regional circuit law in review-
ing the denial of a motion for a new trial. Silicon
Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 798 (Fed.
Cir. 2010). In the Seventh Circuit, a denial of a request
for a new trial is reviewed for an abuse of discretion. Id.
(citing ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353
F.3d 541, 543 (7th Cir. 2003)). The Seventh Circuit has
indicated that a “new trial is appropriate if the jury’s
verdict is against the manifest weight of the evidence or if
the trial was in some way unfair to the moving party.”
Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408,
414 (7th Cir. 2015) (internal citation and quotation marks
omitted).
According to Nordock, a new trial is necessary “to de-
termine § 289 damages as the District Court’s decision’s
adopting a finding that Systems’ profits are $0 or do not
need to be determined is without factual or legal basis
and is against the substantial weight of the credible
evidence.” Appellant Br. 21. Systems responds that the
jury’s award of $46,825 is supported by substantial evi-
dence and should not be disturbed. As discussed below,
we agree with Nordock that a new trial is necessary to
address damages under 35 U.S.C. § 289.
When a patent is infringed, the patentee is entitled to
“damages adequate to compensate for infringement, but
in no event less than a reasonable royalty for the use
made of the invention by the infringer.” 35 U.S.C. § 284.
There are two alternative categories of compensatory
NORDOCK, INC. v. SYSTEMS INC. 11
damages available under § 284: “the patentee’s lost profits
and the reasonable royalty he would have received
through arms-length bargaining.” Lucent Techs., Inc. v.
Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009).
In the case of design patent infringement, a patentee
can recover damages under § 284 or under 35 U.S.C.
§ 289, which is entitled “[a]dditional remedy for infringe-
ment of design patent.” See Catalina Lighting, Inc. v.
Lamps Plus, Inc., 295 F.3d 1277, 1290 (Fed. Cir. 2002).
Section 289 provides as follows:
Whoever during the term of a patent for a design,
without license of the owner, (1) applies the pa-
tented 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 im-
itation 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 dis-
trict 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.
35 U.S.C. § 289. Therefore, the plain language of the
statute permits design patentees to claim either $250 or
the infringer’s “total profit” on sales of “any article of
manufacture” to which the patented design was applied.
We have recognized that where, as here, “only a de-
sign patent is at issue, a patentee may not recover both
infringer profits and additional damages under § 284.”
Catalina Lighting, 295 F.3d at 1291; see also Robert
Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1310 n.1
(Fed. Cir. 2013) (en banc) (“An infringer’s profits are, of
12 NORDOCK, INC. v. SYSTEMS INC.
course, no longer an available remedy for the infringe-
ment of a utility patent. See 35 U.S.C. § 284. Such prof-
its, however, remain available in cases of design patent
infringement. See 35 U.S.C. § 289.”); Signode Corp. v.
Weld-Loc Sys., Inc., 700 F.2d 1108, 1113 n.6 (7th Cir.
1983) (“An infringer of a design patent is liable to the
patent owner to the extent of his total profit or $250,
whichever is greater, under 35 U.S.C. § 289.”). According-
ly, a design patentee can recover either (1) total profits
from the infringer’s sales under § 289, or (2) damages in
the form of the patentee’s lost profits or a reasonable
royalty under § 284, or (3) $250 in statutory damages
under § 289, whichever is greater. See Catalina Lighting,
295 F.3d at 1291.
At trial, the district court instructed the jury, in part,
that:
In this case, Nordock seeks Systems’ profits from
sales of products alleged to infringe the ’754 De-
sign Patent. If you find infringement, and do not
find the ’754 Design Patent is invalid, you are to
award Nordock Systems’ total profit attributable
to the infringement. Systems’ “total profit” means
the entire profit on the sale of the article to which
the patented design is applied, or with which it is
used and not just the portion of profit attributable
to the design or ornamental aspects of the patent.
Jury Instructions at 41, Nordock, Inc. v. Sys., Inc., No.
2:11-cv-118 (E.D. Wis. Mar. 25, 2013), ECF No. 166 (“Jury
Instructions”).
After the jury awarded Nordock $46,825 as a reason-
able royalty and found that Systems’ profits were $0,
Nordock asked the court to amend the judgment regard-
ing damages or order a new trial. In its motion, Nordock
argued that Systems’ own expert—Richard Bero—
calculated a net operating profit of at least $433 per unit
for the hydraulic levelers. The district court rejected
NORDOCK, INC. v. SYSTEMS INC. 13
Nordock’s arguments on grounds that the jury received
extensive damages instructions and chose to award
Nordock compensatory damages in the form of a reasona-
ble royalty. Rule 59 Decision, 2014 WL 3786277, at *4.
On appeal, Nordock argues that: (1) the district court
relied on Systems’ legally deficient “cost savings” method-
ology to determine that Systems’ profits were less than
$15 per dock leveler; (2) the record is devoid of any evi-
dence that Systems’ profits on its sales of the infringing
levelers was $0; and (3) the district court erred in its
interpretation of the jury instructions. We agree with
Nordock on each point.
A. “Cost Savings Methodology”
Nordock argues that the district court’s decision deny-
ing a new trial on damages was erroneous because it
relied upon Bero’s so-called “cost savings methodology.”
At trial, Bero testified that, “because Nordock had not
established that it incurred lost profits, they were not
applicable damages.” Rule 59 Decision, 2014 WL
3786277, at *4. Bero opined that royalty damages were
the proper form of damages, and that $15 per allegedly
infringing dock leveler was appropriate. Id.
In the alternative, Bero testified that, “as an alterna-
tive form of damages, the profits associated with the lip
and hinge plate—the ornamental design of the lip and
hinge plate is approximately $15 or less per dock leveler.”
Tr. of Jury Trial–Test. of Richard Bero held on Mar. 21-
22, 2013 at 15:19-23, Nordock, Inc. v. Sys., Inc., No. 2:11-
cv-118 (E.D. Wis. Mar. 25, 2013), ECF No. 178. Bero
further explained that:
The alternative is the profits attributable to—that
Systems earned on its lip and hinge plate orna-
mental design. And the cost savings that Systems
received as a result of using that design are some-
thing again less than $15 per unit. So on that lip
14 NORDOCK, INC. v. SYSTEMS INC.
and hinge plate design the profitability attributa-
ble that Systems earned—this is defendant’s prof-
its—was something less than $15 per unit. It’s
the same number as the royalty damages. It’s ac-
tually less than that.
Now again, I understand Nordock’s position is
that it should get the entire dock leveler, and to
the extent that’s the case the number would be,
you know, higher obviously.
Id. at 69:13-23 (emphasis added). Based on Bero’s testi-
mony, the district court found that the jury was free to
select a reasonable royalty as the appropriate form of
damages. Rule 59 Decision, 2014 WL 3786277, at *4
(stating that, “according to Bero, Systems’ profit on the
accused products was less than $15 per unit”).
We conclude that the district court erred in relying on
Bero’s “cost savings” methodology, rather than on the
gross profits methodology required by law and described
in the jury instructions. There are several problems with
this so-called “cost savings” approach. First, it is incon-
sistent with the fact that § 289 provides for recovery of
the infringer’s total profits. Indeed, this court has inter-
preted § 289 to require “the disgorgement of the infring-
ers’ profits to the patent holder, such that the infringers
retain no profit from their wrong.” Nike Inc. v. Wal-Mart
Stores, Inc., 138 F.3d 1437, 1448 (Fed. Cir. 1998). Profits
are based on gross revenue after deducting certain allow-
able expenses. Id. at 1447 (noting that the district court
subtracted certain expenses from revenues to arrive at a
profit figure). Consistent with this precedent, the district
court instructed the jury that:
Nordock is entitled to all profit earned by Systems
that is attributable to the infringement. Profit is
determined by deducting certain expenses from
gross revenue. Gross revenue is all of Systems’
receipts from using the design in the sale of the
NORDOCK, INC. v. SYSTEMS INC. 15
infringing products. Nordock has the burden of
proving Systems’ gross revenue by a preponder-
ance of the evidence.
Jury Instructions at 41. Rather than using gross revenue
as a starting point, Bero used his “cost savings” methodol-
ogy, which was limited to the “lip and hinge plate” portion
of the dock levelers. In doing so, Bero ignored the fact
that total profits are based on the article of manufacture
to which the D’754 Patent is applied—not just a portion of
that article of manufacture.
Systems maintains that Nordock is not entitled to re-
cover profits on the entire dock leveler, but rather only
those profits attributable to the “lip and hinge plate”
shown in the D’754 Patent. To the contrary, however, we
recently reiterated that apportioning profits in the context
of design patent infringement is not appropriate, and that
“Section 289 explicitly authorizes the award of total profit
from the article of manufacture bearing the patented
design.” Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983,
1001-02 (Fed. Cir. 2015) (rejecting Samsung’s attempt to
limit the profits awarded to the “portion of the product as
sold that incorporates or embodies the subject matter of
the patent”); see also Nike, 138 F.3d at 1441-42 (discuss-
ing the legislative history of § 289 and Congress’s decision
to remove “the need to apportion the infringer’s profits
between the patented design and the article bearing the
design”). 1
1 Decisions predating this court’s formation similar-
ly concluded that § 289 authorizes the award of the in-
fringer’s total profits. See e.g., Schnadig Corp. v. Gaines
Mfg. Co., 620 F.2d 1166, 1171 (6th Cir. 1980) (Section 289
“provides a single measure of relief applicable to all cases
of design patent infringement,” “assures that the profit to
the wrongdoer is fully extracted,” and “place[s] the pa-
16 NORDOCK, INC. v. SYSTEMS INC.
The D’754 Patent is entitled “Lip and Hinge Plate for
a Dock Leveler,” and makes clear that the claimed design
is applied to and used with a dock leveler. And, as
Nordock points out, the evidence and testimony at trial
demonstrated that the levelers are welded together.
Importantly, there was no evidence that Systems sold a
“lip and hinge plate” separate from the leveler as a com-
plete unit. Appellant Br. 30. We therefore reject Sys-
tems’ attempts to apportion damages to the lip and hinge
plate where it is clear that the article of manufacture at
issue is a dock leveler. Systems’ “article of manufacture”
arguments also fail in light of the district court’s § 289
jury instruction, which correctly stated that “Systems’
‘total profit’ means the entire profit on the sale of the
article to which the patented design is applied, or with
which it is used and not just the portion of profit attribut-
able to the design or ornamental aspects of the patent.”
Jury Instructions at 41.
Bero used an improper methodology and his testimo-
ny was premised on an incorrect understanding of the
relevant article of manufacture. This testimony confused
and misled both the district court and the jury into believ-
tentee in the shoes of the infringer.”). For example, in
Bergstrom v. Sears, Roebuck & Co., 496 F. Supp. 476, 495
(D. Minn. 1980), the court rejected the defendant’s argu-
ment that a design patentee can only recover profits
under § 289 “which are attributable to the design or
ornamental aspects of the patent, rather than the entire
profits on the sale of the patented article.” Id. The court
concluded that the use of the phrase “total profit” in the
statute “undermines defendants’ arguments, as it is
unlikely that Congress would have used such all encom-
passing language if it intended that a design patentee
could only recover profits attributable solely to the design
or ornamental qualities of the patented article.” Id.
NORDOCK, INC. v. SYSTEMS INC. 17
ing that Nordock was only entitled to recover Systems’
profits attributable to a small portion of the dock levelers
at issue. Because no reasonable jury could have believed
Bero’s testimony that profits were less than $15 per unit,
and because the district court erred in relying on Bero’s
“cost savings” methodology in denying Nordock’s motion
for a new trial on § 289 damages, we find it necessary to
reverse and remand this case to the district court for a
new trial on damages. On remand, Nordock is entitled to
a proper determination of Systems’ profits based on the
appropriate gross revenue methodology, not the so-called
“cost savings” approach.
B. Evidence of Systems’ Total Profits
Nordock also argues that there is no credible evidence
that Systems’ total profits for its sales of the infringing
levelers were $0. We agree.
As noted, the jury found infringement with respect to
1,457 of Systems’ hydraulic dock levelers. On the verdict
form, the jury awarded Nordock a reasonable royalty of
$46,825, and indicated that Systems’ profits were $0.
According to Nordock, however, the manifest weight of
the evidence shows that Systems’ profits were over
$600,000 for its infringing LHP/LHD levelers.
First, Nordock points to Dr. Smith’s testimony and
expert report which indicated that Systems had net
pretax profits of $912,201 on its sales of 1,514 LHP/LHD
levelers. Appellant Br. 36. In his expert report, Bero
found that Systems’ operating profit per unit for its
hydraulic levelers was $433. J.A. 6552. And, at trial,
Bero’s damages slide show indicated that Systems sold
1,457 accused hydraulic dock levelers. J.A. 6684. Taken
together, therefore, Bero’s report and testimony reveal
that Systems’ total profits on the infringing hydraulic
levelers were at least $630,881. Based on this evidence of
record, Nordock argues that Systems’ total profit for the
LHP/LHD levelers is either $630,881, using Bero’s infor-
18 NORDOCK, INC. v. SYSTEMS INC.
mation, or $912,201, using Dr. Smith’s information.
Under either formulation, the evidence showed that
Systems’ profits were over $630,000—a far cry from $0.
Next, Nordock argues that, even if the jury disregard-
ed the experts’ testimony with respect to gross revenue
and relied on Bero’s “cost savings” methodology, the jury
should have found that Systems had some profits on its
infringing LHP/LHD levelers—not $0. Appellant Br. 38.
Indeed, Bero testified that Systems’ use of the lug hinge
saved roughly $5 per unit on the manufacture of the
hydraulic levelers. J.A. 6707. Systems responds that the
jury was free to discount Dr. Smith’s opinion and adopt
Bero’s opinion that Systems’ profits associated with “the
ornamental design of the lip and hinge plate is approxi-
mately $15 or less per dock leveler.” Appellee Response
Br. 25.
While Systems is certainly correct that the jury is en-
titled to believe one expert over the other, as previously
discussed, Bero’s attempt to limit profits to only the “lip
and hinge plate” is inconsistent with § 289. Nordock is
entitled to a determination of Systems’ total profits for the
sale of the levelers found to infringe. Because there is no
credible evidence that Systems’ profits on its sales of the
1,457 infringing levelers were $0, we conclude that the
jury’s verdict was “against the manifest weight of the
evidence” such that a new trial is warranted. Glicken-
haus, 787 F.3d at 414.
C. Jury Instructions
Finally, Nordock argues that the district court misin-
terpreted the “Patent Damages Burden of Proof” jury
instruction “to mean that if there was a determination of
damages under § 284, then there need be no determina-
tion of damages under § 289.” Appellant Br. 46. The
district court correctly instructed the jury as follows:
NORDOCK, INC. v. SYSTEMS INC. 19
For design patents, Nordock can prove either ac-
tual damages, known as compensatory damages,
or it may prove Systems’ profits as its measure of
potential recovery with respect to the sale of each
unit of an infringing product. As compensatory
damages, Nordock may prove either its own lost
profits, or a reasonable royalty for the design pa-
tent. Nordock is not entitled to recover both com-
pensatory damages and Systems’ profits on the
same sale.
Jury Instructions at 39. As previously discussed, the
court also instructed the jury that “[i]f you find infringe-
ment, and do not find the ’754 Design Patent is invalid,
you are to award Nordock Systems’ total profit attributa-
ble to the infringement.” Id. at 41.
Based on these instructions, Nordock contends that it
“is entitled to Systems’ total profits for the infringing LHP
and LHD levelers under § 289 because these profits are
greater than the amount found under § 284 and are in
excess of the minimum fixed by § 289.” Appellant Br. 47.
Systems responds that Nordock waived any objections it
might have had to the court’s instructions by failing to
object to them when given. Systems further argues that,
under the district court’s instructions, “the jury had the
option of awarding either a reasonable royalty or Systems’
profits.” Appellee Response Br. 46.
Counsel for Nordock conceded at oral argument that
he did not object to either the burden of proof instruction
or the § 289 instruction because they are accurate state-
ments of the law. Instead, counsel maintains on appeal
that the district court misinterpreted the jury instructions
to read out § 289. Oral Argument at 1:50-2:17, available
at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
2014-1762.mp3 (“We didn’t object to the 289 jury instruc-
tion because it specifically states that Systems’ profits
w[ere] to be determined by gross revenues. We have no
20 NORDOCK, INC. v. SYSTEMS INC.
problem with that at all. With respect to the jury instruc-
tion—the burden of proof jury instruction—I believe it
reads correctly. The judge is misinterpreting it to basical-
ly read out § 289.”).
The record reveals that both the district court and the
jury were confused with respect to the interplay between
§ 284 and § 289. In its decision denying Nordock’s motion
for a new trial on damages, the district court explained
that the jury was instructed that it could award Nordock
compensatory damages “or it could recover Systems’
profits as a measure of potential recovery with respect [to]
the sale of each unit of an infringing product.” Rule 59
Decision, 2014 WL 3786277, at *4 (emphasis added). The
court then recognized Dr. Smith’s testimony that Systems’
profits on the sale of the infringing products were
$845,954, and Bero’s contrary calculation that Systems’
profits would have been less than $91,650. Id. Though
the court acknowledged that there was evidence of Sys-
tems’ profits (as distinct from the evidence of Nordock’s
lost profits), it explained that, “the jury heard testimony
regarding lost profits, [but] it chose to award a reasonable
royalty. The jury was free to discredit Smith’s testimony
regarding Nordock’s lost profits or find that Bero’s testi-
mony was more convincing and persuasive.” Id.
The district court blended its discussion of Nordock’s
compensatory damages with the evidence of Systems’
profits. In doing so, the court overlooked a critical point:
the fact that Nordock could recover only one type of
damage on each sale—either (1) Nordock’s lost profits or a
reasonable royalty or (2) Systems’ total profits—did not
absolve the jury of its obligation to determine the amount
of Systems’ total profits for purposes of determining
damages under § 289. To the extent the district court
believed that the jury could simply choose between award-
ing damages under § 284 or § 289, it is incorrect. As the
court’s jury instructions correctly stated, if the jury finds
infringement, and does not find the D’754 Patent invalid,
NORDOCK, INC. v. SYSTEMS INC. 21
it is “to award Nordock Systems’ total profit attributable
to the infringement.” Jury Instructions at 41. Only
where § 289 damages are not sought, or are less than
would be recoverable under § 284, is an award of § 284
damages appropriate. On remand, the court will have an
opportunity to revisit and restructure its jury instructions
on damages consistent with this opinion so as to provide
the jury with a clear and appropriate understanding of its
obligation to determine Systems’ profits pursuant to
§ 289.
II. SYSTEMS’ CROSS-APPEAL
Systems cross-appeals from the district court’s deci-
sions denying its motion for JMOL that the D’754 Patent
is invalid as purely functional. Systems also argues that
the district court erred in denying its motion for JMOL of
non-infringement with respect to the 6 ½ foot dock level-
er. We address these issues in turn.
A. Validity
As a threshold matter, Nordock argues that Systems
did not preserve the issue of validity for appeal because it
did not raise it in a Rule 50 or Rule 59 motion. According
to Nordock, because Systems failed to file a motion con-
testing the sufficiency of the evidence with respect to the
validity of the D’754 Patent, this court should reject
Systems’ cross-appeal challenging validity in its entirety.
Systems responds that it moved for JMOL that the
D’754 Patent is invalid twice before the case went to the
jury and again after the verdict was reached and read in
open court. As explained below, because we find Systems’
Rule 50(b) motion inadequate, we conclude that Systems
has not preserved its validity arguments for appeal.
Rule 50 of the Federal Rules of Civil Procedure “sets
forth the procedural requirements for challenging the
sufficiency of the evidence in a civil jury trial and estab-
lishes two stages for such challenges—prior to submission
22 NORDOCK, INC. v. SYSTEMS INC.
of the case to the jury, and after the verdict and entry of
judgment.” Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 399 (2006). Rule 50(a) allows a party
to challenge the sufficiency of the evidence before the case
is submitted to the jury. Under that rule, the district
court can enter judgment against a party who has been
fully heard on an issue during a jury trial if “a reasonable
jury would not have a legally sufficient evidentiary basis
to find for the party on that issue.” Fed. R. Civ. P. 50(a).
After the verdict and entry of judgment, the losing
party may renew its challenge to the sufficiency of the
evidence under Rule 50(b). “A party’s failure to comply
with Rule 50(b) forecloses any challenge to the sufficiency
of the evidence on appeal.” Consumer Prods. Research &
Design, Inc. v. Jensen, 572 F.3d 436, 437 (7th Cir. 2009).
“A postverdict motion is necessary because
‘[d]etermination of whether a new trial should be granted
or a judgment entered under Rule 50(b) calls for the
judgment in the first instance of the judge who saw and
heard the witnesses and has the feel of the case which no
appellate printed transcript can impart.” Unitherm, 546
U.S. at 401 (citation omitted). Absent a Rule 50(b) mo-
tion, “an appellate court is ‘powerless’ to review the
sufficiency of the evidence after trial.” Ortiz v. Jordan,
562 U.S. 180, 189 (2011) (citing Unitherm, 546 U.S. at
405).
“[T]here is no requirement that [a] Rule 50 motion be
in writing and be filed with the court; oral motions, in
which a party specifically invokes the rule, or perhaps
even colloquy with the court, fulfill the requirements of
Rule 50 in some instances.” Belk, Inc. v. Meyer Corp.,
U.S., 679 F.3d 146, 156 (4th Cir. 2012). Accordingly,
although “the better practice is for the motion to be in
writing . . . an oral motion on the record will suffice.”
Moran v. Raymond Corp., 484 F.2d 1008, 1010 n.1 (7th
Cir. 1973). If counsel moves for JMOL before the case is
submitted to the jury, counsel “must specify the judgment
NORDOCK, INC. v. SYSTEMS INC. 23
sought and the law and facts that entitled the movant to
the judgment.” Fed. R. Civ. P. 50(a)(2). After the verdict,
counsel must sufficiently renew the same. Fed. R. Civ. P.
50(b).
Here, at the close of Nordock’s case in chief, counsel
for Systems orally moved for JMOL that the D’754 Patent
is invalid. Counsel stated that:
We have elicited from the witnesses that have
testified that they are unable to identify any or-
namental features in the drawings that are part of
the patent in dispute here. Nobody has been able
to point to anything with specificity. The only an-
swer we were able to get was these things are –
it’s the overall appearance, but Professor Visser
himself testified under oath that the general con-
figuration of a dock leveler with an articulated
hinge, et cetera, is, in fact, functional.
Mr. Gleason himself testified at deposition
that the entire hinge is functional. And, in fact,
the witnesses provided by the plaintiff have con-
firmed themselves that the design, the alleged de-
sign is functional. Nobody’s been able to argue
anything ornamental. Point to anything orna-
mental. For that reason we believe that no rea-
sonable jury could find that this patent is
anything other than functional and hence invalid.
Tr. of Jury Trial Excerpt: Def.’s Mot. at Close of Pl.’s Case
held on Mar. 21, 2013 at 4:12-5:5, Nordock, Inc. v. Sys.,
Inc., No. 2:11-cv-118 (E.D. Wis. Apr. 3, 2015), ECF No.
234. The district court denied Systems’ motion with
respect to validity, finding that “the jury should consider
it.” Id. at 15:20.
Before the case went to the jury, Systems’ counsel re-
newed its motions for JMOL on the record. With respect
to functionality, counsel maintained that “there’s an
24 NORDOCK, INC. v. SYSTEMS INC.
absence of any evidence that anything is ornamental.” Tr.
of Jury Trial–Vol. 6 held on Mar. 25, 2013 at 1234:25-
1235:1, Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D.
Wis. Apr. 3, 2015), ECF No. 233. Counsel further argued
that, “[i]f you remove each of the admittedly functional
elements of the drawing, you end up with a blank sheet of
paper.” Id. at 1235:8-10. The court denied Systems’
motion, concluding that a reasonable factfinder could
determine that the overall design is not dictated by func-
tion. Id. at 1240:6-10.
Because counsel for Systems specifically addressed
the insufficiency of the evidence with respect to the orna-
mental features of the D’754 Patent, we conclude that
these motions were sufficient under Rule 50(a). The
question, therefore, is whether Nordock’s post-trial mo-
tion was sufficient to preserve the issue for appeal pursu-
ant to Rule 50(b). “Because the sufficiency of post-
judgment motions is a procedural matter not unique to
patent law, the law of the Seventh Circuit sets the stand-
ard by which we judge the adequacy of” Systems’ motion.
Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1347
(Fed. Cir. 2005).
Rule 7(b)(1) of the Federal Rules of Civil Procedure
requires that motions must “state with particularity the
grounds for seeking the order.” Fed. R. Civ. P. 7(b)(1)(B).
The Seventh Circuit has determined that the rule’s
standard for particularity means “reasonable specifica-
tion.” Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d
757, 760 (7th Cir. 2001) (quoting Martinez v. Trainor, 556
F.2d 818, 819-20 (7th Cir. 1977)). “The purpose of the
particularity requirement in Rule 7 is to afford notice of
the grounds and prayer of the motion to both the court
and to the opposing party, providing that party with a
meaningful opportunity to respond and the court with
enough information to process the motion correctly.”
Registration Control Sys., Inc. v. Compusystems, Inc., 922
F.2d 805, 807 (Fed. Cir. 1990).
NORDOCK, INC. v. SYSTEMS INC. 25
The record reveals that, after the jury reached its ver-
dict, the district court asked counsel whether there were
any post-trial motions. At that point, counsel for Systems
had the following exchange with the court:
MR. MANN: Well, I guess at this point, Judge,
just as a routine matter whatever motions we
made during the trial, JMOL and so forth, we
would renew those motions to the extent that they
are necessary. . . .
Everything we made we renew. I’m not sure what
that is, but just for the record whatever we said
before—
THE COURT: Yeah, and everything the Court
said about those is the same also, so—
MR. MANN: Okay. Fair enough, Judge.
Tr. of Jury Trial–Vol. 7 held on Mar. 26, 2013 at 1305:12-
1306:5, Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D.
Wis. Apr. 3, 2015), ECF No. 235. Thereafter, although
Systems filed a Rule 59(e) motion with respect to in-
fringement, it did not file any post-verdict motion as to
validity.
We conclude that counsel for Systems failed to renew
the motion for JMOL as to validity with sufficient particu-
larity to satisfy the Seventh Circuit’s “reasonable specifi-
cation” standard. Fort James, 412 F.3d at 1347 (quoting
Martinez, 556 F.2d at 819-20). While there is no require-
ment that a Rule 50(b) motion be in writing, it is counsel’s
responsibility to ensure that the record is sufficiently
clear for both the district court and the appellate court
reviewing the record to understand the grounds therefor.
Merely renewing “whatever w[as] said before” is inade-
quate, particularly when qualified with the statements
that the renewal is only “to the extent necessary” and that
counsel is unaware of what the motions were. We there-
26 NORDOCK, INC. v. SYSTEMS INC.
fore may not consider Systems’ challenge to the sufficien-
cy of the evidence with respect to validity.
Even if we were to consider Systems’ arguments,
however, we would conclude that substantial evidence
supports the jury’s finding that Systems failed to prove
that the D’754 Patent is invalid. It is well established
that a design patent “only protects the novel, ornamental
features of the patented design.” OddzOn Prods., Inc. v.
Just Toys, Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997). If a
patented design is “primarily functional rather than
ornamental, the patent is invalid.” PHG Techs., LLC v.
St. John Cos., 469 F.3d 1361, 1366 (Fed. Cir. 2006) (cita-
tion and quotation marks omitted). The determination of
whether a patented design is dictated by function “must
ultimately rest on an analysis of its overall appearance.”
Berry Sterling Corp. v. Pescor Plastics, Inc., 122 F.3d
1452, 1455 (Fed. Cir. 1997). We have recognized that
assessing various factors may help determine whether a
claimed design, as a whole, is dictated by functionality:
whether the protected design represents the best
design; whether alternative designs would ad-
versely affect the utility of the specified article;
whether there are any concomitant utility pa-
tents; whether the advertising touts particular
features of the design as having specific utility;
and whether there are any elements in the design
or an overall appearance clearly not dictated by
function.
PHG Techs., 469 F.3d at 1366 (quoting Berry Sterling, 122
F.3d at 1456); see also High Point Design LLC v. Buyers
Direct, Inc., 730 F.3d 1301, 1315 (Fed. Cir. 2013) (“As-
sessing [these five] factors may help determine whether a
claimed design, as a whole, is ‘dictated by’ functional
considerations.”).
Here, the testimony and evidence at trial demonstrat-
ed that: (1) Nordock intended the design to be distinctive
NORDOCK, INC. v. SYSTEMS INC. 27
and ornamental; (2) the header plate is not necessary to
the function of a dock leveler; (3) there is a wide range of
alternate designs available, including an open lug
frontend design and a standard piano hinge design; and
(4) the alternate designs available achieve the same
utilitarian purpose as the patented design. See Tr. of
Jury Trial–Vol. 2 held on Mar. 19, 2013 at 152:24-153:8,
Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D. Wis. Feb.
6, 2015), ECF No. 231; see also Tr. of Jury Trial–Vol. 1
held on Mar. 18, 2013 at 59:21-60:7, Nordock, No. 2:11-cv-
118 (E.D. Wis. Feb. 6, 2015), ECF No. 230. On this rec-
ord, there was substantial evidence from which a jury
could conclude that the claimed design is not dictated by
function.
B. Infringement
Systems also argues that the district court erred by
denying its motion for JMOL of non-infringement of the
6 ½ foot dock leveler. To the extent Systems cross-
appeals from the district court’s denial of its motion for
JMOL of non-infringement, that argument was not
properly preserved for appeal for the same reason dis-
cussed in the context of Systems’ motion for JMOL of
invalidity: counsel’s Rule 50(b) motion was insufficient.
Although Systems did not file a post-verdict motion with
respect to validity, it did file a Rule 59(e) motion seeking
to amend the judgment on grounds that no evidence was
presented at trial regarding the accused 6 ½ foot dock
levelers. The district court denied that motion, and
Systems’ notice of cross-appeal indicated that it was
appealing from several adverse rulings, including the
district court’s denial of its Rule 59(e) motion. See Notice
of Cross Appeal, Nordock, Inc. v. Systems, Inc., No. 2:11-
cv-118 (E.D. Wis. Aug. 29, 2014), ECF No. 215. Therefore,
although Systems’ infringement arguments on appeal are
framed in the context of JMOL, we are reviewing the
district court’s denial of Systems’ Rule 59(e) motion to
alter or amend the judgment. We apply regional circuit
28 NORDOCK, INC. v. SYSTEMS INC.
law in reviewing a motion under Rule 59(e). Minton v.
Nat’l Ass’n of Sec. Dealers, Inc., 336 F.3d 1373, 1378-79
(Fed. Cir. 2003). The Seventh Circuit reviews the denial
of a Rule 59(e) motion for abuse of discretion. Zivitz v.
Greenberg, 279 F.3d 536, 539 (7th Cir. 2002).
To prevail on a Rule 59(e) motion to amend the judg-
ment, 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) (citing Harrington v. City of Chicago,
433 F.3d 542, 546 (7th Cir. 2006)). The Seventh Circuit
has described “manifest error” as “wholesale disregard,
misapplication, or failure to recognize controlling prece-
dent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000). Importantly, Rule 59(e) is not a vehicle for
reasserting previously rejected arguments. Vesely v.
Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014) (“Yet we
have held that a Rule 59(e) motion is not to be used to
‘rehash’ previously rejected arguments . . . .”).
The district court denied Systems’ motion to amend
on grounds that “the trial testimony and exhibits support
the jury’s finding that Systems’ 6-, 6 ½-, and 7-foot wide
LHP/LHD levelers infringed Nordock’s ’754 Patent.” Rule
59 Decision, 2014 WL 3786277, at *2. The court ex-
plained that the patent pertains to the “front end” of a
dock leveler, and the jury saw evidence and heard testi-
mony from Nordock’s president and CEO that “the 6-foot
leveler and the middle 6-foot portion of the 6 ½- and 7-foot
levelers are the same.” Id. Because Systems offered no
evidence to the contrary, the court concluded that a jury
could reasonably infer that there is no significant differ-
ence between the three sizes of levelers. Id. And, because
both Systems’ and Nordock’s brochures showed only the 6
and 7 foot levelers, the court found that the jury could
reasonably infer from the omission of the 6 ½-foot leveler
NORDOCK, INC. v. SYSTEMS INC. 29
that it is “substantially similar to the 6- and 7-foot level-
ers.” Id.
Systems does not rely upon newly discovered evi-
dence. Instead, it argues that Nordock presented zero
evidence at trial regarding Systems’ 6 ½ foot dock leveler.
According to Systems, Nordock’s technical expert admit-
ted that he did not review any actual Systems dock level-
er in preparing his report, and instead relied on Systems’
brochures, none of which included pictures of the 6 ½ foot
leveler. Systems also points to testimony from its Vice
President—Mike Pilgrim—who identified differences in
construction that make the 6 ½ foot leveler distinct from
both the 6 and 7 foot versions.
We conclude that the district court did not abuse its
discretion by denying Systems’ motion to amend the
judgment with respect to infringement. Even if there was
no direct evidence presented for the 6 ½ foot dock leveler,
the jury could reasonably infer infringement based on the
evidence submitted at trial. We have recognized that a
“patentee may prove direct infringement . . . by either
direct or circumstantial evidence.” Liquid Dynamics
Corp. v. Vaughan Co., 449 F.3d 1209, 1219 (Fed. Cir.
2006). Indeed, “[t]here is no requirement that direct
evidence be introduced, nor is a jury’s preference for
circumstantial evidence over direct evidence unreasonable
per se.” Id. Given the trial testimony that the middle 6-
foot portion of each leveler is identical, the jury could have
reasonably inferred that all three sizes of the accused
dock levelers infringed the D’754 Patent. We, thus,
conclude that Systems failed to establish that the court
“committed a manifest error of law or fact.” Blue, 698
F.3d at 598.
CONCLUSION
For the foregoing reasons, we conclude that the dis-
trict court erred in denying Nordock’s motion for a new
trial to assess damages pursuant to 35 U.S.C. § 289. We
30 NORDOCK, INC. v. SYSTEMS INC.
therefore vacate the jury’s damages award and remand
for a new trial on damages. With respect to Systems’
cross-appeal, we affirm the district court’s decisions
denying Systems’ motion for JMOL as to validity and its
Rule 59(e) motion with respect to infringement of the 6 ½
foot dock leveler. Accordingly, we affirm in part, vacate in
part, and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED