Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 1 of 37 PageID #: 9785
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GREEN MOUNTAIN GLASS, LLC AND
`CULCHROME, LLC,
`
`Plaintiffs,
`
`
`
`v.
`
`Civil Action No. 14-cv-392-GMS
`
`JURY TRIAL DEMANDED
`
`SAINT-GOBAIN CONTAINERS, INC. dba
`VERALLIA NORTH AMERICA,
`
`Defendant.
`
`PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR
`JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, A NEW TRIAL
`
`DATED: June 9, 2017
`
`Justin A. Nelson (admitted pro hac vice)
`SUSMAN GODFREY L.L.P.
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002
`Telephone: (713) 651-9366
`Facsimile: (713) 654-6666
`Email: jnelson@susmangodfrey.com
`
`Steven M. Shepard (admitted pro hac vice)
`SUSMAN GODFREY L.L.P.
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 100019-6023
`Telephone: (212) 336-8330
`Facsimile: (212) 336-8340
`Email: sshepard@susmangodfrey.com
`
`Matthew R. Berry (admitted pro hac vice)
`John E. Schiltz (admitted pro hac vice)
`SUSMAN GODFREY L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101-3000
`Telephone: (206) 516-3880
`Facsimile: (206) 516-3883
`Email: mberry@susmangodfrey.com
`Email: jschiltz@susmangodfrey.com
`
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`Telephone: (302) 777-0300
`Facsimile: (302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`Robert S. Bramson (admitted pro hac vice)
`BRAMSON & PRESSMAN
`1100 East Hector Street, Suite 410
`Conshohocken, PA 19428
`Telephone: (610) 260-4444
`Facsimile: (610) 260-4445
`rbramson@b-p.com
`
`Attorneys for Green Mountain Glass LLC
`and CulChrome LLC
`
`O-I Glass, Inc.
`Exhibit 1070
`O-I Glass v. Culchrome
`IPR2020-01068
`
`Ex. 1070-001
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 2 of 37 PageID #: 9786
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`Ardagh Cannot Meet the High Burden Necessary to Overturn the Jury’s
`Findings................................................................................................................................3 
`
`Substantial Evidence Supports that Ardagh Infringed the ’737 Patent ................................3 
`
`Substantial Evidence Supports that Ardagh Willfully Infringed the ’737 Patent ................7 
`
`Substantial Evidence Supports that the ’737 Patent Is Valid .............................................12 
`
`a.
`
`b.
`
`Ardagh’s Pre-1995 Process Did Not Anticipate the ’737 Patent ...........................12 
`
`Duckett and Ross Do Not Render the ’737 Patent Invalid ....................................18 
`
`This Court Should Deny Ardagh’s Request to Reconsider Claim Construction ...............20 
`
`This Court Should Deny Ardagh’s Request to Reconsider its Section 101
`Order ..................................................................................................................................20 
`
`VII.
`
`Substantial Evidence Supports the Jury’s Damages Verdict .............................................21 
`
`VIII. Ardagh’s Equitable Defenses Are Meritless ......................................................................28 
`
`IX.
`
`Conclusion .........................................................................................................................30 
`
`i
`
`Ex. 1070-002
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 3 of 37 PageID #: 9787
`
`Cases 
`
`TABLE OF AUTHORITIES
`
`A.C. Aukerman Co. v. R.L. Chaides Const. Co.,
`960 F.2d 1020 (Fed. Cir. 1992)......................................................................................... 29
`
`Avid Tech., Inc. v. Harmonic Inc.,
`2014 WL 7206301 (D. Del. Dec. 17, 2014) .................................................................... 3, 5
`
`City of Los Angeles v. Heller,
`475 U.S. 796 (1986) ............................................................................................................ 7
`
`Commonwealth Sci. & Indus. Research Organisation v. Cisco Sys., Inc.,
`809 F.3d 1295 (Fed. Cir. 2015)......................................................................................... 25
`
`Cont’l Auto. Sys. U.S., Inc. v. Schrader Elecs., Inc.,
`2012 WL 12930768 (E.D. Mich. Dec. 3, 2012) ............................................................... 14
`
`Deere & Co. v. Int’l Harvester Co.,
`710 F.2d 1551 (Fed. Cir. 1983)......................................................................................... 27
`
`EMC Corp. v. Zerto, Inc.,
`2016 WL 1291757 (D. Del. Mar. 31, 2016) ................................................................. 3, 13
`
`Energy Transp. Grp., Inc. v. Sonic Innovations, Inc.,
`2011 WL 2222066 (D. Del. June 7, 2011) ................................................................ 4, 8, 21
`
`Energy Transp. Grp., Inc. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012)................................................................................... 26, 28
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)......................................................................................... 24
`
`Finjan, Inc. v. Symantec Corp.,
`2013 WL 5302560 (D. Del. Sept. 19, 2013) ........................................................... 3, 4, 6, 9
`
`Gasser Chair Co. v. Infanti Chair Mfg. Corp.,
`60 F.3d 770 (Fed. Cir. 1995)............................................................................................. 30
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) ............................................................................................ 8, 10, 12
`
`Hanson v. Alpine Valley Ski Area, Inc.,
`718 F.2d 1075 (Fed. Cir. 1983)......................................................................................... 23
`
`Hemstreet v. Computer Entry Sys. Corp.,
`972 F.2d 1290 (Fed. Cir. 1992)......................................................................................... 30
`
`ii
`
`Ex. 1070-003
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 4 of 37 PageID #: 9788
`
`Hewlett-Packard Co. v. Mustek Sys., Inc.,
`340 F.3d 1314 (Fed. Cir. 2003)..................................................................................... 5, 20
`
`HSM Portfolio LLC v. Elpida Memory Inc.,
`160 F. Supp. 3d 708 (D. Del. 2016) .................................................................................. 15
`
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006)........................................................................................... 19
`
`Intellectual Ventures I, LLC v. Canon Inc.,
`104 F. Supp. 3d 629 (D. Del. 2015) .................................................................................... 7
`
`Intellectual Ventures I, LLC v. Xilinx, Inc.,
`2014 WL 1814384 (D. Del. Apr. 14, 2014) ...................................................................... 27
`
`InterDigital Commc’ns, Inc. v. ZTE Corp.,
`2016 WL 1073229 (D. Del. Mar. 18, 2016) ....................................................................... 7
`
`InTouch Techs., Inc. v. VGO Commc’ns, Inc.,
`751 F.3d 1327 (Fed. Cir. 2014)......................................................................................... 19
`
`Jurgens v. CBK, Ltd.,
`80 F.3d 1566 (Fed. Cir. 1996)................................................................................. 9, 10, 11
`
`Keith v. Truck Stops Corp. of America,
`909 F.2d 547 (3d Cir. 1986)................................................................................................ 3
`
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc.,
`688 F.3d 1342 (Fed. Cir. 2012)......................................................................................... 19
`
`LaserDynamics, Inc. v. Quanta Comput., Inc.,
`694 F.3d 51 (Fed. Cir. 2012)............................................................................................. 24
`
`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed. Cir. 2009)......................................................................................... 28
`
`M2M Sols. LLC v. Enfora, Inc.,
`167 F. Supp. 3d 665 (D. Del. 2016) .................................................................................. 26
`
`Meyers v. Asics Corp.,
`974 F.2d 1304 (Fed. Cir. 1992)......................................................................................... 30
`
`Meyers v. Brooks Shoe Inc.,
`912 F.2d 1459 (Fed. Cir. 1990)......................................................................................... 30
`
`Monsanto Co. v. McFarling,
`488 F.3d 973 (Fed. Cir. 2007)........................................................................................... 26
`
`iii
`
`Ex. 1070-004
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 5 of 37 PageID #: 9789
`
`nCUBE Corp. v. SeaChange Int’l, Inc.,
`313 F. Supp. 2d 361 (D. Del. 2004) .................................................................................. 17
`
`NTP, Inc. v. Research In Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)......................................................................................... 18
`
`OddzOn Prod., Inc. v. Just Toys, Inc.,
`122 F.3d 1396 (Fed. Cir. 1997)......................................................................................... 16
`
`Prism Techs. LLC v. Sprint Spectrum L.P.,
`849 F.3d 1360 (Fed. Cir. 2017)......................................................................................... 25
`
`Rite-Hite Corp. v. Kelley Co.,
`56 F.3d 1538 (Fed. Cir. 1995)........................................................................................... 26
`
`Romag Fasteners, Inc. v. Fossil, Inc.,
`29 F. Supp. 3d 85 (D. Conn. 2014) ................................................................................... 29
`
`Schumer v. Lab. Computer Sys., Inc.,
`308 F.3d 1304 (Fed. Cir. 2002)......................................................................................... 18
`
`TruePosition Inc. v. Andrew Corp.,
`568 F. Supp. 2d 500 (D. Del. 2008) .................................................................................. 29
`
`Unisplay, S.A. v. Am. Elec. Sign Co.,
`69 F.3d 512 (Fed. Cir. 1995)............................................................................................. 28
`
`W.L. Gore & Assocs., Inc. v. Garlock, Inc.,
`721 F.2d 1540 (Fed. Cir. 1983)......................................................................................... 16
`
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016)........................................................................................... 8
`
`Wi-Lan, Inc. v. Apple, Inc.,
`811 F.3d 455 (Fed. Cir. 2016)........................................................................................... 20
`
`Woodland Trust v. Flowertree Nursery, Inc.,
`148 F.3d 1368 (Fed. Cir. 1998)......................................................................................... 14
`
`Zenith Elecs. Corp. v. PDI Commc’n Sys., Inc.,
`522 F.3d 1348 (Fed. Cir. 2008)......................................................................................... 14
`
`iv
`
`Ex. 1070-005
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 6 of 37 PageID #: 9790
`
`After a five-day trial, the jury found Ardagh willfully infringed the ’737 patent; the ’737
`
`patent is valid; and Green Mountain’s damages were $50,313,779.04. In its motion, Ardagh does
`
`not argue evidence was erroneously admitted or excluded, that the law was erroneously applied,
`
`or that the jury was erroneously instructed. Instead, Ardagh simply insists that the jury should
`
`have weighed the evidence differently to find in Ardagh’s favor. But more than substantial
`
`evidence supported each of the jury’s findings.
`
`Green Mountain submitted overwhelming evidence showing Ardagh infringed each of
`
`the asserted claims. For example, Dr. Martin, one of the foremost glass scientists in the world,
`
`walked the jury through Ardagh’s own records and testified that the accused methods met every
`
`limitation of the asserted claims. Ardagh’s senior scientists also admitted infringement pre-suit.
`
`Ardagh’s sole challenge to this evidence is to now seek erroneous post-trial claim constructions,
`
`and improperly test the jury’s verdict under those new constructions—even if procedurally
`
`allowable (it is not), the constructions also are wrong and insufficient for JMOL in any event.
`
`Substantial evidence also supports the jury’s willfulness finding. The evidence showed
`
`that Ardagh learned of the patent four months after its application and had more than a decade of
`
`negotiations surrounding it, that Ardagh copied the ’737 methods, failed to conduct a reasonable
`
`investigation or form a good faith belief they were not infringed or invalid, actively concealed
`
`that infringement through false letters and declarations, and failed to design around or cease
`
`using Green Mountain’s technology even after this suit was filed. Katie Flight’s testimony is one
`
`example of Ardagh’s willfulness. After claiming she did not know what mixed color cullet is and
`
`claiming ignorance as to her contemporaneous documents, Ms. Flight disclaimed the declaration
`
`she signed under oath and which Ardagh had submitted to support its Paragraph 4(b) disclosures.
`
`Ms. Flight’s testimony was so “terrible” that Ardagh’s counsel tried to disavow it in closing
`
`1
`
`Ex. 1070-006
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 7 of 37 PageID #: 9791
`
`arguments. But Ms. Flight’s behavior typified how Ardagh conducted itself before and after suit.
`
`Substantial evidence also supports the jury’s finding that Ardagh did not prove by clear
`
`and convincing evidence that the ’737 patent is invalid. On the Friday before trial, Ardagh for the
`
`first time asserted a prior use defense. But Ardagh’s own expert conceded that Ardagh’s prior
`
`process reference did not expressly disclose the use of “mixed color cullet,” and that he merely
`
`assumed that limitation was met based on Ardagh, interested testimony from years after the fact.
`
`That alone dooms Ardagh’s anticipation defense as a matter of law, but Ardagh’s own records
`
`also conclusively proved that the “cullet” disclosed in the reference was not “mixed color cullet.”
`
`Fact and expert testimony also demonstrated the Ardagh’s prior process was not “reasonably
`
`accessible to the public” and had been “abandoned, suppressed, or concealed.” Ardagh’s
`
`remaining invalidity defenses were so meritless and conclusory that Ardagh’s lead counsel did
`
`not even mention them in his opening statement or closing argument.
`
`Finally, overwhelming evidence supports the jury’s “within the range” damages award of
`
`an approximately $12 per ton reasonable royalty. Ardagh’s own expert relied on a pre-issuance,
`
`draft licensing agreement containing a $15 per ton royalty for use of the ’737 technology. Green
`
`Mountain’s expert testified that Ardagh’s own records showed that it had saved between $25 and
`
`$33 per ton from just two of the six benefits it obtained by infringing. And an internal, pre-suit
`
`report from Ardagh called Green Mountain’s technology “compelling” with a potential value
`
`proposition of approximately $1.4M cost savings, per year, per Ardagh furnace.
`
`Ardagh now retries all of its same, losing arguments to this Court on the briefs, asking the
`
`Court to reweigh the evidence, make its own credibility determinations, and substitute Ardagh’s
`
`view of the facts for the jury’s. That is not permissible. Because overwhelming evidence
`
`supports each finding Ardagh seeks to overturn, this Court should deny Ardagh’s motion.
`
`2
`
`Ex. 1070-007
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 8 of 37 PageID #: 9792
`
`I.
`
`Ardagh Cannot Meet the High Burden Necessary to Overturn the Jury’s Findings
`“[T]he Third Circuit has clarified that if, at the very least, the ‘record contains the
`
`minimum quantum of evidence’ from which a jury could reasonably find a verdict, a JMOL
`
`motion should be denied.” Finjan, Inc. v. Symantec Corp., No. 10-CV-593 (GMS), 2013 WL
`
`5302560, at *24 (D. Del. Sept. 19, 2013) (quoting Keith v. Truck Stops Corp. of America, 909
`
`F.2d 547, 548 (3d Cir. 1986)). “In determining whether the evidence is sufficient to sustain
`
`liability, the court may not weigh the evidence, determine the credibility of witnesses, or
`
`substitute its version of the facts for the jury’s version.” EMC Corp. v. Zerto, Inc., No. CV 12-
`
`956(GMS), 2016 WL 1291757, at *2 (D. Del. Mar. 31, 2016). And a court should grant a JMOL
`
`only “if, viewing the evidence in the light most favorable to the nonmovant and giving it the
`
`advantage of every fair and reasonable inference, there is insufficient evidence from which a jury
`
`reasonably could find liability.” Id. (citations omitted).
`
`Ardagh’s request for a new trial is subject to a similarly high burden. A new trial can be
`
`granted “only if ‘the verdict was against the weight of the evidence and a miscarriage of justice
`
`would result if the verdict were to stand.’” Avid Tech., Inc. v. Harmonic Inc., No. CV 11-1040-
`
`GMS, 2014 WL 7206301, at *1–2 (D. Del. Dec. 17, 2014) (citation, ellipsis, and brackets
`
`omitted). As this Court has recognized, “this stringent standard is necessary to ensure that a
`
`district court does not substitute its judgment of the facts and the credibility of the witnesses for
`
`that of the jury. Such an action effects a denigration of the jury system and to the extent that new
`
`trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the
`
`trier of facts.” Id. (citation and quotation omitted). Ardagh cannot meet these substantial burdens.
`
`II.
`
`Substantial Evidence Supports that Ardagh Infringed the ’737 Patent
`Green Mountain presented substantial evidence “through exhibits, fact, and expert
`
`testimony,” which provided the jury reasonable grounds to find that Ardagh infringed all asserted
`
`3
`
`Ex. 1070-008
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 9 of 37 PageID #: 9793
`
`claims of the ’737 patent. See Finjan, 2013 WL 5302560 at *30 (denying JMOL based on the
`
`same). This Court should not overturn the jury’s assessment of the evidence presented to it.
`
`Green Mountain’s expert, Dr. Steve Martin—one of the foremost glass scientists in the
`
`world—testified extensively as to Ardagh’s infringement. See Tr. at 400:24-433:20. After
`
`walking the jury through Ardagh’s records and his expert knowledge, Dr. Martin opined as to
`
`claim 18 that “all of the steps have been practiced by Ardagh’s accused methods,” id. at 424:2-3.
`
`He similarly testified that “all of the accused methods . . . infringe claim 1,” “all of their accused
`
`batches also infringe claim 20,” “all of their accused amber batches in[fringe] Claim 21,” “all of
`
`their green batches . . . containing cobalt infringe Claim 22,” and “batches containing manganese
`
`for the amber batches and . . . cobalt for the green batches infringe claim 24.” Id. at 432:13-25.
`
`While Dr. Martin’s testimony alone provided a sufficient basis for a reasonable jury to
`
`find that Ardagh infringed the ’737 patent, see Energy Transp. Grp., Inc. v. Sonic Innovations,
`
`Inc., No. CA 05-422 GMS, 2011 WL 2222066, at *9 (D. Del. June 7, 2011), Green Mountain
`
`submitted considerable additional evidence. For example, Green Mountain’s technical director,
`
`Dr. Lehman—himself a renowned glass scientist at Rutgers University—testified that Ardagh’s
`
`Manager of Glass Technology told him that Ardagh used mixed color cullet with colorizers and
`
`decolorizers. See Tr. at 201:1-9. Ardagh’s corporate face, James Keener, testified that Ardagh
`
`practiced every limitation of the ’737 patent’s independent claims. See id. at 711:22-712:20. A
`
`reasonable jury also could have found infringement from the exhibits, including, for example, the
`
`internal Ardagh email stating, “we would not seek to license any color control technology
`
`(‘CulChrome’, which uses copper oxide to mask high levels of green cullet) because we are
`
`already doing it.” PX-134; see also PX40-A, PX-93A, PX-248, PX-379, PX-393, JTX-55, JTX-
`
`61, JTX-70, JTX-122, JTX-80, JTX-123, JTX-95. Indeed, Ardagh’s prior use defense is
`
`4
`
`Ex. 1070-009
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 10 of 37 PageID #: 9794
`
`sufficient to uphold the verdict. As this Court recognized at trial, “asserting a defense of
`
`anticipation based on Ardagh’s prior public use could seriously undermine the infringement
`
`position in the eyes of the jury.” Tr. at 762:10-15.
`
`Ardagh’s sole challenge to the jury’s infringement verdict is that “Plaintiffs failed to
`
`prove that Ardagh ‘selectively decolorized’ one of the colors of the unsorted mixed color cullet.”
`
`Br. at 3. Citing Webster’s College Dictionary for its preferred definition of “selectively,” Ardagh
`
`argues that Green Mountain misconstrued the claims. But the time for claim construction has
`
`long passed. See Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir. 2003)
`
`(“where the parties and the district court elect to provide the jury only with the claim language
`
`itself, and do not provide an interpretation of the language in the light of the specification and the
`
`prosecution history, it is too late at the JMOL stage to argue for or adopt a new and more detailed
`
`interpretation of the claim language and test the jury verdict by that new and more detailed
`
`interpretation.”). Because the Court did not construe “selectively” (neither party ever requested
`
`it), it was “given its ‘plain and ordinary meaning as understood by one skilled in the art,” and
`
`“[i]t was not improper for [Green Mountain] to offer its view of the plain and ordinary meaning
`
`to the jury.” Avid Tech., 2014 WL 7206301 at *4. “On the contrary, [Ardagh’s] attempt to
`
`reargue (or assert for the first time) claim construction positions at this stage is . . . improper.” Id.
`
`Ardagh’s newfound construction is also incorrect as a matter of law,1 but even that is
`
`beside the point. Whether Ardagh “selectively decolorized” was an issue of fact here. Ardagh’s
`
`
`1 The direct object of the selective decolorization in claims 1 and 18 is “at least one of the colors”
`in the batch, not specifically the cullet or the raw materials. JTX-1 (“adding to said virgin batch
`mixture at least one of a decolorizing agent which selectively decolorizes at least one of the
`colors of said unsorted mixed color glass cullet”). The decolorizing agent can, and indeed does,
`act on the batch as a whole—and not just “on the cullet,” as Ardagh suggests—as shown by the
`final step of claim 18, which provides: “creating a recycled glass product of said particular color
`from the selectively colorized/decolorized virgin batch mixture.” Id. (emphasis added).
`
`5
`
`Ex. 1070-010
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 11 of 37 PageID #: 9795
`
`arguments “center on issues of conflicting evidence and expert testimony,” and accordingly, “are
`
`insufficient to set aside the jury verdict.” Finjan, 2013 WL 5302560 at *34. Dr. Martin testified
`
`“selectively decolorize” means “decolorizing a particular color,” which he said Ardagh did. E.g.,
`
`Tr. at 414:13-19. When asked if “Ardagh’s selectively decolorizing argument [is] a sound
`
`argument as a matter of glass science,” Dr. Martin replied, “No, it is not”: “We are decolorizing
`
`the particular region of the electromagnet spectrum. It has nothing to do with the cullet.” Id. at
`
`415:10-21. Ardagh cross-examined Dr. Martin about that testimony, id. at 534:16-539:5, and Dr.
`
`Martin reiterated it on redirect, id. at 572:10-574:14. And Ardagh’s corporate representative
`
`admitted that Ardagh “added colorizers and decolorizers to that mixture to selectively colorize or
`
`decolorize one of the colors of the cullet.” Id. at 712:5-9.
`
`The jury sided with Green Mountain. The Court should not reweigh the evidence,
`
`reassess witness credibility, or substitute Ardagh’s understanding of the facts for the jury’s. In
`
`the words of this Court, “It is the province of the jury to assess the testimony of each expert
`
`witness and determine, viewed in light of the other evidence presented at trial, which was most
`
`credible and/or persuasive.” Finjan, 2013 WL 5302560 at *28.
`
`That Green Mountain’s counsel asked a fact witness one question calling for a legal
`
`conclusion does not change that or entitle Ardagh to a new trial. See Br. at 4-5. The question
`
`came after Ardagh’s corporate face conceded in a series of questions that Ardagh practiced all
`
`elements of the ’737 patent’s independent claims. Ardagh did not object to these questions or
`
`move to strike the responses. The single follow-up question to which Ardagh objected did not
`
`amount to egregious conduct that prejudiced Ardagh or resulted in a miscarriage of justice. After
`
`sustaining Ardagh’s objection, the Court instructed the jury, after receiving input from Ardagh’s
`
`counsel, to “disregard” the “question and his comment.” Tr. at 713:23-714:7. At sidebar, the
`
`6
`
`Ex. 1070-011
`
`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 12 of 37 PageID #: 9796
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`Court asked Ardagh whether it had a motion or wanted any relief. Id. at 713:2. Ardagh made the
`
`strategic decision not to move for a mistrial, and instead provided input on a curative instruction.
`
`Finally, if any prejudice existed after the initial curative instruction, the final instructions
`
`confirmed, “[t]he lawyers’ statements, as you well know by now, and arguments are not
`
`evidence” and in particular that, “[t]heir questions and objections are not evidence.” Id. at
`
`1229:22-1230:4. “[S]ometimes I may have ordered you to disregard things that you saw or heard.
`
`You must completely ignore all of these things . . . These things are not evidence, and you are of
`
`course bound by your oath not to let them influence your decision in any way.” Id. at 1230:15-
`
`23. Stating, “it’s worth saying an additional word about statements and arguments of counsel,”
`
`the Court then further instructed the jury that “[w]hat an attorney personally believes or thinks
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`about the testimony or evidence in a case is simply not relevant, and you are instructed to
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`disregard any personal opinion other or belief concerning testimony or evidence that an attorney
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`has offered.” Id. at 1233:6-19. These instructions, which the jury is presumed to have followed,
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`City of Los Angeles v. Heller, 475 U.S. 796, 798 (1986), eliminated any potential prejudice
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`allegedly suffered by Ardagh. See, e.g., InterDigital Commc’ns, Inc. v. ZTE Corp., No. CV 13-
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`009-RGA, 2016 WL 1073229, at *5 (D. Del. Mar. 18, 2016) (denying new trial based on
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`allegedly improper attorney argument because “jury was instructed that it was the sole judge of
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`credibility and that arguments made by attorneys were not evidence”). Ardagh’s reliance on
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`Intellectual Ventures I, LLC v. Canon Inc., 104 F. Supp. 3d 629, 659 (D. Del. 2015) is misplaced
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`because there, unlike here, the attorney comment was on an issue for which there was no expert
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`testimony and for which the party had represented to the court that it would not submit evidence.
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`III.
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`Substantial Evidence Supports that Ardagh Willfully Infringed the ’737 Patent
`This Court should deny Ardagh’s request for judgment as a matter of law that it was not a
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`willful infringer. As this Court has correctly recognized, willfulness is “an ‘intent implicating
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`7
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`Ex. 1070-012
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`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 13 of 37 PageID #: 9797
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`question’ that ‘is peculiarly within the province of the fact finder that observed the witnesses.’”
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`Energy Transp. Grp., 2011 WL 2222066 at *15. Or as the Federal Circuit put it post-Halo,
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`willfulness “is a classical jury question of intent. When trial is had to a jury, the issue should be
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`decided by the jury.” WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016).
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`Here, under a heightened willfulness instruction proposed by Ardagh, the jury found
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`“Ardagh was especially worthy of punishment.” Tr. at 1250:23-24. It was not just that “Ardagh
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`knew of the patents in suit and infringed”; it was that Ardagh engaged in “the most egregious
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`behavior,” which was “wanton, malicious, consciously wrongful, or done in bad faith.” Id. at
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`1250:24-1251:4. And the jury found Ardagh culpable only after “consider[ing] all the facts,”
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`including whether Ardagh “acted consistently with the standards of behavior for its industry,”
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`“intentionally copied a method that is covered by the patents in suit,” “reasonably believed that it
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`did not infringe or that the patent was invalid,” “attempted to cease infringing activity or design
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`around the patent[],” and whether “Ardagh tried to cover up its infringement.” Id. at 1251:4-22.
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`Substantial evidence supports the jury’s willfulness findings. Ardagh does not dispute
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`that its employees had extensive pre-suit knowledge of the ’737 patent. See Br. at 5-9. Nor could
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`it, as Green Mountain disclosed the patent-pending ’737 methods to Ardagh’s Senior Vice
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`President of Technical Services, Roger Erb, a mere four months after Green Mountain’s patent
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`application. See JTX-5. While Ardagh now claims that “Ardagh’s glassmaking processes had
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`used mixed color cullet since before the Plaintiffs’ patent,” Br. at 5, Erb said nothing of the sort
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`at the time and instead responded that he would be “impress[ed]” if Green Mountain “could take
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`50% Green Glass and 50% Amber Glass and successfully make Amber Glass.” JTX-5.
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`Among other things, the jury also heard evidence on (1) Ardagh’s deliberate copying,
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`including that, a mere eight days after learning about the patent, Ardagh drafted a secret dossier
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`8
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`Ex. 1070-013
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`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 14 of 37 PageID #: 9798
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`in which it sought information regarding nineteen different aspects of Green Mountain’s
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`technology, PX-25; (2) Ardagh’s failure to investigate the scope of the patent or form a good
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`faith belief that it was invalid or not infringed, including that Ardagh’s corporate representative
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`responded, “I don’t know” to the question “What work did Ardagh do to analyze whether to take
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`a license to the patents in suit when it met with Green Mountain, the plaintiffs, prior to this
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`litigation arising?” Tr. at 593:11-15; (3) Ardagh’s failure to take remedial action, including that
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`Ardagh’s infringement continued post-suit, id. at 391:11-13; and (4) Ardagh’s attempts to
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`conceal its infringement, including that Ardagh sent Green Mountain a putatively false letter
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`denying infringement pre-suit, id. at 325:21-326:22, and that post-suit, Ardagh served a false,
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`later-disclaimed declaration denying it used “mixed color cullet,” id. at 294:11-296:14.
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`Although no further showing is needed to deny Ardagh’s motion, see, Finjan, 2013 WL
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`5302560 at *24, Ardagh’s request for relief is unpersuasive. Ardagh first argues that no
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`reasonable jury could have found Ardagh willful because it was “undisputed” that it reasonably
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`believed it could not be liable for infringement because “Ardagh’s glassmaking process used
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`mixed color cullet since before the Plaintiffs’ patent.” Br. at 5-7. The argument fails on multiple
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`levels. First, the jury already rejected Ardagh’s good faith defense when it found Ardagh acted in
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`“bad faith” and was “consciously wrongful,” Tr. at 1250:17-1251:22. See Jurgens v. CBK, Ltd.,
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`80 F.3d 1566, 1572 (Fed. Cir. 1996) (“Because the jury had rejected CBK’s assertion that it
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`acted in good faith as a matter of fact, the court did not have discretion to reweigh the evidence
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`about the competency of the opinion or CBK’s reliance on it.”). Second, the evidence showed
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`Ardagh was not using mixed color cullet before the ’737 priority date, let alone publicly or with
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`all of the other claim limitations as would have been necessary to invalidate ’737 patent.
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`The evidence on which Ardagh now bases its alleged reasonable belief defense is also
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`9
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`Ex. 1070-014
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`

`

`Case 1:14-cv-00392-GMS Document 260 Filed 06/09/17 Page 15 of 37 PageID #: 9799
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`irrelevant to willfulness as a matter of law. Despite what Ardagh suggests today, years after the
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`fact, it did not take its prior use position “from the start and consistently maintain[] it.” Br. at 6.
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`It was not asserted until the Friday before trial, when Ardagh’s lawyers orchestrated a final
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`attempt to avoid liability after this Court correctly rejected Ardagh’s attempt to base non-
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`infringement on its baseless and already-rejected claim construction argum