Yesterday in Hearing Components, Inc. v. Shure, Inc., No. 09-1364, the Federal Circuit passed on the plaintiff's claims that Judge Clark erred in entering judgment of that two asserted claims of patent #1 were invalid as being indefinite, as well as in granting judgment as a matter of law of noninfringement of four other claims in patents #2 and #3 by Shure Inc.’s earphones employing a straight nozzle. Defendant was similarly unhappy that Judge Clark denied its motion for JMOL of noninfringement of the same four claims in patents #2 and #3 by Shure’s earphones employing a barbed nozzle (which bothers me just thinking about), its denial of JMOL of invalidity, and its determination of no laches for those patents. You can guess the result, right? "We affirm in part, reverse in part, and remand."
Specifically, the Federal Circuit concluded that the first two claim terms were not invalid as indefinite, and remanded for further proceedings, so there's a win for the plaintiff. It also held that there was substantial evidence that both products infringed, so it affirmed Judge Clark's denial of the JMOL claiming that one didn't infringe, and reversed his granting of the JMOL claiming that the other didn't. That's two more wins for the plaintiff. Next up was validity and laches, and the Fed Circuit affirmed Judge Clark's denial of the JMOL on obviousness and his finding that laches did not apply.
The final score is 5-0 for the plaintiff, 0-5 for the defendant, and 3-2 for Judge Clark. Since the trial that occurred with respect to the claims from patents #2 and #3 resolved the issues of infringement and damages as to the two accused products on those patents (the damages for the JMOL'ed product are already determined so they can be reinstated - this is a good example of having all the issues resolved by the jury and "in the box" so that a reversal doesn't require a retrial) as best I can tell, only the two claims from patent #1 would have to be tried now. Since they pertain to a different product (a wax guard used with certain earphones) and patent the trial may not have overlapped that much with the first trial. I am told that expert disclosures were complete when Judge Clark found the claims indefinite so potentially all that remains is to prepare a schedule for a pretrial order and trial on those two claims and one product.
For a thorough analysis of the legal issues raised by the appeal, see Dennis Crouch's post at Patently-O.