Failure To Move For JMOL Under Rule 50(A) Leads To A Forfeiture Of JMOL Under Rule 50(B)

In Medisim Ltd. v. BestMed, LLC, No. 13-1451 (Fed. Cir. July 14, 2014), the Federal Circuit vacated the district court's grant of JMOL on anticipation, affirmed the district court's grant of JMOL on unjust enrichment, and affirmed the district court's conditional grant of a new trial on anticipation.

Medisim Ltd. ("Medisim") owns U.S. Patent No. 7,597,668 ("the '668 patent"), directed to a fast noninvasive thermometric device that displays a core body temperature. More than a year before the filing date for the '668 patent, Medisim marketed and sold the FHT-1 thermometer, which uses a heat-flux algorithm to quickly estimate a local body temperature. For several years, BestMed, LLC ("BestMed") marketed and sold several of Medisim's thermometers. But the parties parted ways, after which BestMed began selling competing thermometer products.

Medisim sued BestMed for, inter alia, infringement of the '668 patent and unjust enrichment. Both parties made several motions requesting JMOL under Fed. R. Civ. P. 50(a), but the district court denied all motions. The jury found the '668 patent to be not invalid and infringed, and awarded Medisim damages for both its patent infringement and unjust enrichment claims. Postverdict, BestMed moved for JMOL of anticipation and no unjust enrichment under Rule 50(b). The district court granted both motions, overturning the verdict and finding the '668 patent anticipated by the FHT-1 thermometer. The district court also granted BestMed's motion for a new trial on anticipation, though conditioned it on an appellate court determining that BestMed failed to preserve its right to bring a post-trial JMOL motion. Medisim appealed.

"No procedural principle is more familiar to this Court than that a . . . right may be forfeited . . . by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Slip op. at 9 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)).

On appeal, the Federal Circuit held that BestMed forfeited its right to move for JMOL on anticipation under Rule 50(b) by not moving for JMOL under Rule 50(a). The Court explained that Rules 50(a) and (b) "are linked together," and "[a] motion under Rule 50(b) is not allowed unless the movant sought relief on similar grounds under Rule 50(a) before the case was submitted to the jury." Slip op. at 6 (alteration in original) (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)). The Court rejected...