SCOTUS Won’t Hear Nova Appeal Of $61.7M Dow Plastic Patent Verdict

October 29, 2012, by Mandour & Associates, APC

Orange County – The U.S. Supreme Court on Monday declined to take up Nova Chemicals Corp.’s petition for a writ of certiorari to review a Federal Circuit decision that left untouched a $61.7 million patent infringement award against Nova in favor of Dow Chemical Co. over plastic polymers.

The Federal Circuit shot down Nova’s appeal of a Delaware federal jury’s 2010 infringement verdict in April of this year, ruling that there was no error in the district court’s standing and invalidity analyses, and that substantial evidence support’s the jury’s infringement finding.

Nova had argued on appeal that the district court should have found Dow lacked standing to bring the lawsuit. Dow was the original assignee of the patents, but later transferred them to a holding company.

The district court should also have set aside the jury verdict because the Dow patents asserted are invalid for indefiniteness and lack of an adequate written description, and so are not infringed, Nova said. The Federal Circuit disagreed, though, saying that one of skill in the art would understand the bounds of the patent claims.

Dow sued Nova in 2005 to enforce U.S. Patent Numbers 5,847,053 and 6,111,023, which claim a new kind of plastic that is stronger than conventional plastics, allowing the use of thinner plastic film for the same purposes. Dow markets its patented invention as Elite, while Nova markets a competing product named Surpass.

Nova did not prevail on any of its defensive arguments in the district court. The district judge held a bench trial to resolve the standing issue that ended in Dow’s favor. He also found the patents were not indefinite as a matter of law, but nonetheless allowed the jury to consider that question and the issue of the lack of an adequate written description.

In the end the jury found the Dow patents to be valid and awarded Dow $61.7 million for lost profits and reasonable royalties. The district court denied Nova’s renewed motion for judgment as a matter of law and entered judgment consistent with the jury verdict.

Circuit Judge Jimmy Reyna offered a dissenting voice accompanying the Federal Circuit’s opinion, saying the patents were in fact transferred to Dow’s holding company and so it did lack standing. The appeals court should have reversed the district court and dismissed the case without prejudice, he said.