United States Court of Appeals for the Federal Circuit

Appeal from the United States District Court for the Western District of Missouri in No. 5:19-cv-06021-SRB, Judge Stephen R. Bough.

THIS CAUSE having been considered, it is

United States Court of Appeals for the Federal Circuit

The parties submit a joint stipulation for voluntary dis- missal of Appeal No. 2023-1476 with each party to bear its own costs in connection with that appeal, which the court construes as a motion to voluntarily dismiss that appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure.

Appeal No. 2023-1476 is dismissed, and the revised official caption is reflected above.

(2) Each side shall bear its own costs in connection with Appeal No. 2023-1476.

(4) The Clerk of Court shall transmit a copy of this or- PROVISUR TECHNOLOGIES, INC. v. WEBER, INC. August 22, 2023 Date der to the merits panel assigned to this case.

However, for purposes of clarity and consistency, this Order collectively refers to “Defendants” or “Weber.” Plaintiff filed a subsequent lawsuit against Defendants for patent infringement, Case No. 20-cv-06069-SRB.

“The sort of conduct warranting enhanced damages has been variously described ... as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed— characteristic of a pirate.” Halo Elec., 579 U.S. at 103-04.

Defendants respond in part that their “purported failure to produce evidence of an investigation does not support enhanced damages” and that Plaintiff failed to carry its burden of showing “intentional and deliberate infringement.” (Doc. #524, p.

Such conduct includes, but is not limited to, purchasing the silence of a potential witness, destroying relevant documents, and displaying “a lack of regard for the judicial system.” Id. at 338-39 (collecting Federal Circuit case law).

The parties’ arguments on this factor raise many of the same or similar disputes that were previously resolved by the Court, either before or during trial.5 In addition, Defendants have provided plausible explanations for their discovery and trial conduct.

“Judgment as a matter of law is proper only when there is a complete absence of probative facts to support the conclusion reached so that no reasonable jury could have found for the nonmoving party.” Foster v. Time Warner Entm’t Co., 250 F.3d 1189, 1194 (8th Cir. 2001).

For the reasons stated in Plaintiff’s opposition brief, in the Court’s prior Orders, and by the Court at trial, Defendants’ arguments are rejected.

However, a Rule 59 motion serves the “limited function of correcting manifest errors of law or fact or to present newly discovered evidence.” Id.

Defendants’ primary arguments are as follows: Plaintiff misrepresented discovery disputes and European proceedings which misled and prejudiced the jury; Plaintiff misrepresented the law on willful infringement that tainted the jury on willfulness and infringement; the Court wrongly precluded Defendants from offering testimony about its patent monitoring program; the Court erroneously instructed the jury on claim construction; the Court erred by preventing Defendants from introducing evidence in support of their invalidity defenses; Defendants were wrongly prevented from presenting deposition testimony of Plaintiff’s employees; and the jury’s damages verdict was excessive, against the great weight of the evidence, and based on erroneous jury instructions.

For the reasons stated in Plaintiff’s opposition brief, in the Court’s prior Orders, and by the Court at trial, Defendants’ arguments are rejected.

PLEASE TAKE NOTICE that Document #564 filed on May 1, 2024 was filed in error and should be removed from the docket in the above-styled case.

Dated: May 1, 2024 Respectfully submitted,

1100 New York Avenue, N.W.

HONORABLE Stephen R. Bough presiding at Kansas City, Missouri.

Defendant: Daniel Yonan, Kristina Kelly Deirdre Well and Jason Leiker Witness Testifying

Panel returns to the courtroom 2:28 p.m. Court reads the names of the selected jurors.

Court shows a patent process video to the jurors at 2:55 p.m. Jury is released for the day.

Court Reporter: Gayle Wambolt By: Tracey Richard