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...