A court may remit a damages award only if it “is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.” Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1310 (Fed. Cir. 2009) (quoting Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1580 (Fed. Cir. 1992)).

It contends that Willis Electric was permitted to argue that the asserted prior art was merely cumulative of what the United States Patent and Trademark Office (“Patent Office”) had already considered, while Polygroup was improperly restricted in its efforts to rebut those arguments by delving into the details of the prosecution history.

The Court carefully considered the parties’ competing constructions and found that Polygroup’s proposal departed from the plain and ordinary meaning of the claim language by adding a requirement of maintaining the electrical connection during rotation.

Even Polygroup’s counsel conceded that “I don’t think there is contrary evidence.” Given this largely unrebutted evidence of substantial compliance with the marking statute, the Court finds no clear error in allowing the jury to award damages beginning on the date of the ’186 Patent’s issuance in June 2013.

And the other factors discussed above—including Polygroup’s successes in invalidating and defeating infringement of many of the originally asserted claims, the absence of egregious litigation misconduct, and the Court’s prior denial of enhanced damages—all weigh against an exceptional case determination.

Plaintiff Willis Electric Co., Ltd. (“Willis Electric”) opposes the motion, arguing that Defendants should be required to post a bond for the full amount of the judgment plus 10% for post-judgment interest, costs, and damages for delay.

CASE 0:15-cv-03443-JNE-DTS Doc. 1033 Filed 04/17/24 Page 2 of 5 motion practice and inter partes review proceedings challenging the validity of the asserted patents, see, e.g., Polygroup Ltd. MCO v. Willis Elec.

Willis Electric filed its opposition to Polygroup’s motion on April 15, 2024, arguing that Polygroup should be required to post a bond for the full amount of the judgment plus 10% for post-judgment interest, costs, and damages for delay.

The burden is on the party seeking the waiver to demonstrate that such a departure is warranted by addressing the following five factors: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after appeal; (3) the degree of confidence that the debtor has sufficient funds to pay the judgment; (4) whether the debtor’s ability to pay is so plain that the cost of the bond would be a waste of money; and (5) whether the debtor is in such a precarious financial position that posting a bond would jeopardize other creditors.

As a foreign entity with no U.S. bank accounts, executing the judgment against Polygroup is likely to involve significant discovery, garnishment procedures, and turnover orders, among other complex proceedings.

CASE 0:15-cv-03443-JNE-DTS Doc. 993 Filed 03/08/24 Page 2 of 10 After motion practice and inter partes review (IPR) proceedings challenging the validity of the asserted patents, see, e.g., Polygroup Ltd. MCO v. Willis Elec.

Willis Electric argues several factors from the Read Corp. test support increasing damages, including evidence suggesting Polygroup may have deliberately copied Willis Electric’s patented “One Plug” artificial tree design, failed to form a good faith belief of non-infringement or invalidity, engaged in concerning litigation conduct, has substantial financial resources as the world’s largest artificial tree company, and did not attempt to switch to a non-infringing alternative until 2019.

Polygroup further argues that both parties litigated aggressively, that artificial trees are a minor product line, and that it lacked egregious motivations or clear concealment of evidence warranting enhanced damages.

In sum, considering the totality of the circumstances, Polygroup’s conduct does not constitute the type of willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or “characteristic of a pirate” behavior required for enhanced damages CASE 0:15-cv-03443-JNE-DTS Doc. 993 Filed 03/08/24 Page 6 of 10 under Section 284 and Halo.

As such, the Court concludes that Willis Electric is entitled to prejudgment interest at the 10% Minnesota statutory rate based on the $42,494,772 reasonable royalty damages awarded by the jury.

CASE 0:15-cv-03443-JNE-DTS Doc. 934 Filed 01/09/24 Page 5 of 30 In light of these arguments regarding relevance to the obviousness analysis and potential jury confusion, Polygroup urges the Court to deny Willis Electric’s motion in limine and allow reference to the underlying independent claims and their invalidity at trial.

Polygroup seeks to introduce evidence concerning the scope of prior art before the alleged invention date to help establish obviousness, separate and apart from any suggestion that Willis Electric violated disclosure duties.

So for the foregoing reasons, while a blanket exclusion order would be improper given the issues presented at this stage, limitations crafted to allow relevant evidence only for purposes other than proving misconduct, paired with an instruction against any implications or arguments on that topic, appropriately balances the parties’ respective positions.

Willis Electric maintains that courts routinely allow IPR evidence while CASE 0:15-cv-03443-JNE-DTS Doc. 934 Filed 01/09/24 Page 21 of 30 crafting jury instructions to address differences in claim construction standards and burdens of proof applied in the proceedings.

Extraneous Legal Testimony by Witness Willis Electric intends to call patent prosecutor John Fonder to testify regarding factual matters within his personal knowledge, not as a technical expert opining on infringement or validity.

CASE 0:15-cv-03443-JNE-DTS Doc. 930 Filed 01/05/24 Page 5 of 30 In light of these arguments regarding relevance to the obviousness analysis and potential jury confusion, Polygroup urges the Court to deny Willis Electric’s motion in limine and allow reference to the underlying independent claims and their invalidity at trial.

So long as there is no accompanying allegation regarding candor or misconduct in prosecution, allowing reference to this art for validity defenses is permissible and Willis CASE 0:15-cv-03443-JNE-DTS Doc. 930 Filed 01/05/24 Page 13 of 30 Electric’s concerns of prejudice can be alleviated through an instruction to the jury on limited use.

So for the foregoing reasons, while a blanket exclusion order would be improper given the issues presented at this stage, limitations crafted to allow relevant evidence only for purposes other than proving misconduct, paired with an instruction against any implications or arguments on that topic, appropriately balances the parties’ respective positions.

Willis Electric maintains that courts routinely allow IPR evidence while CASE 0:15-cv-03443-JNE-DTS Doc. 930 Filed 01/05/24 Page 21 of 30 crafting jury instructions to address differences in claim construction standards and burdens of proof applied in the proceedings.

Extraneous Legal Testimony by Witness Willis Electric intends to call patent prosecutor John Fonder to testify regarding factual matters within his personal knowledge, not as a technical expert opining on infringement or validity.

748 Filed 01/05/23 Page 8 of 77 Willis Electric argues that Davis’s reasonable royalty opinions nonetheless should be excluded as unreliable because they predominantly rely on an agreement between Loominocity, Inc. (Loominocity), ...

Nonetheless, Willis Electric argues that Davis improperly relies on a purportedly comparable agreement between Loominocity and Belgravia from 2020, more than six years after the date of the hypothetical negotiation.

But the Boston Warehouse agreement nonetheless contemplates royalties based on “each Licensed Product sold,” as opposed to royalties tied directly to the Loomis Patent or limited to patented features.