United States: Practical Tips on Intellectual Property Law

Practical Post-Trial Tips In Patent Cases

I. Post Trial Proceedings

A. Rule 50 - Motion For Judgment As A Matter of Law

1. Relevant Law And Standards

Under Federal Rule of Civil Procedure 50(a), a party may bring a motion for Judgment as a Matter of Law ("JMOL"). A Rule 50(a) motion should be premised on the absence of any "legally sufficient evidentiary basis for a reasonable jury to find" for a party on a particular issue. Fed. R. Civ. P. 50(a).

Rule 50(a) motions must be made during trial, after a party has been fully heard on an issue. If the court does not grant the motion, the action is submitted to the jury subject to the court’s later deciding the legal questions raised by the motion. Fed. R. Civ. P. 50(b).

Thus, even after the jury returns a verdict, a party may renew a previously made Rule 50(a) motion under Rule 50(b), and the court has the power to grant such a motion after the verdict. In ruling on a renewed motion for JMOL, if the jury has returned a verdict, the court may: (1) allow the judgment to stand; (2) order a new trial; or (3) direct entry of judgment as a matter of law. Fed. R. Civ. P. 50(a)(1). If the jury did not return a verdict, the court may order a new trial or direct entry of judgment as a matter of law. Fed. R. Civ. P. 50(a)(2).

It is crucial to file both the original and the renewed JMOL motions within specific time limits. The Federal Circuit defers to the law of the appropriate regional circuit in reviewing rulings under Rule 50. See Sjolund v. Musland, 847 F.2d 1573, 1576 (Fed. Cir. 1988) (applying the law of the Ninth Circuit in reviewing the entry of a judgment notwithstanding the verdict); See Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212 (9th Cir. 1997) (holding that the Ninth Circuit "strictly adheres to the requirements of Rule 50(b), which prohibit a party from moving for a judgment as a matter of law after the jury’s verdict unless that motion was first presented at the close of evidence"). Specifically, an original motion for JMOL must be made before the submission of the case to the jury. Fed. R. Civ. P. 50(a)(1). The motion for a renewed JMOL must be made no later than 10 days after entry of judgment. Fed. R. Civ. P. 50(b).

A party who fails to move for JMOL at the close of evidence cannot challenge the sufficiency of evidence underlying jury findings through a renewed JMOL or on appeal. Young Dental Mfg. Co. v. Q3 Special Prods. Inc., 112 F.3d 1137, 1141 (Fed. Cir. 1997).

The Federal Circuit reviews a grant of JMOL de novo, reapplying the district court’s JMOL standard anew. Union Carbide Chems. & Plastics Tech. Corp. v. Shell Oil Co., 308 F.3d 1167, 1185 (Fed. Cir. 2002). In evaluating a Rule 50(a) motion, the Federal Circuit examines the evidence to determine whether a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. "In this regard, this court must view the evidence in a light most favorable to the non-moving party." Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1576 (Fed. Cir. 1996). The Federal Circuit also reviews the legal standards that the jury applied in reaching its verdict to determine whether they were correct as a matter of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 975 (Fed. Cir. 1995). When a legal issue is submitted to a jury without an objection, the Federal Circuit treats the jury’s verdict on the legal issue as a resolution of all genuinely disputed underlying factual issues in favor of the verdict winner. Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1562 n.3 (Fed. Cir. 1993).

2. Practical Tips For JMOLs

  • Be sure to present a Rule 50(a) motion before submission of the case to the jury. Failure to do so will preclude a challenge to the sufficiency of evidence underlying jury findings
  • File renewed JMOLs within ten days of entry (not receipt or service) of judgment. Check Pacer daily or the court's docket daily after the verdict to determine when judgment was entered.
  • If the jury cannot or will not reach a verdict on all issues submitted to it, make a timely JMOL to allow the Court to rule on the undecided issues. See Quaker City Gear Works, Inc. v. Skil Corp., 747 F.2d 1446 (Fed. Cir. 1984).
  • File a timely JMOL to allow the Court to remove inconsistent jury findings that would otherwise necessitate a new trial. See Mycogen Plant Sci., Inc. v. Monsanto Co., 243 F.3d 1316 (Fed Cir. 2001).

3. Sample JMOL Legal Standards Section

Rule 50 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

A mere scintilla of evidence in support of the plaintiff's position is insufficient; there must be substantial evidence present on which the jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986) (holding that standards for directed verdict and for summary judgment are the same); Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1140 (9th Cir. 1974); ILC Peripherals Leasing Corp. v. International Business Machines Corp., 448 F. Supp. 228, 229 (N.D. Cal. 1978).

To deny a JMOL motion, a court must find:

[S]ubstantial evidence of such ’quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.’ . . . [H]owever, ’a jury question does not exist because of a "mere scintilla of evidence"; rather, "[t]here must be a conflict in substantial evidence to create a jury question."’

Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1549 (11th Cir. 1996) (citations omitted) (reversing district court’s denial of JMOL on trade secrets claim).

Where, as here, "only one conclusion can be drawn, the court must direct a verdict . . . ." Los Angeles Memorial Coliseum Commission v. National Football League et al., 726 F.2d 1381, 1387 (9th Cir. 1984). Where the record contains undisputed evidence, as here, JMOL should be granted. Bowers v. Baystate Technologies, Inc., 2003 U.S. App. LEXIS 1423 at *36-37 (Fed. Cir. January 23, 2003) (Federal Circuit reversed the district court's denial of motion for JMOL of patent non-infringement); see also PIN/NIP, Inc. v. Platte Chemical Co., 304 F.3d 1235, 1248 (Fed. Cir. 2002) (the Federal Circuit found that the district court erred when it declined to grant a JMOL that a patent claim failed to satisfy the written description requirement under 35 U.S.C. § 112.).

B. Rule 52(b) – Amendment Of Findings

A party may move to amend the court's findings no later than 10 days after entry of judgment. Fed. R. Civ. P. 52(b). A motion to amend the trial court’s findings and conclusions, like for a new trial under Rule 59, is addressed to the discretion of the court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331- 332, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).

C. Rule 54(d) – Motion For Attorney’s Fees

Rule 54(d) provides that claims for attorney's fees shall be made by motion filed no later than 14 days after entry of judgment. Section 285 of the Patent Act provides that "[a] court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U.S.C. § 285. The purpose of § 285 is two-fold. First, it permits an award of fees "where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear". Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1364 (Fed. Cir.), cert. denied, 498 U.S. 851 (1990) (quoting J.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1052 (Fed. Cir. 1987). It also deters parties from bringing bad faith litigation, which protects litigants, the courts, and the judicial process from abuse. Mathis v. Spears, 857 F.2d 749, 753-54 (Fed. Cir. 1988). Attorney's fees are available to the prevailing party under § 285, whether that party is the patentee or the accused infringer. See e.g., Elteck Sys. Corp. v. PPG Indus, Inc., 903 F.2d 805, 811 (Fed. Cir. 1990).

Federal Circuit law governs the Court's determination as to whether a case is "exceptional" under 35 U.S.C. § 285, and the Federal Circuit has held that its law also applies to the calculation of fees and expenses under § 285. See Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1343 (Fed. Cir. 2001). Deciding whether to award attorney's fees under § 285 is a two step process. First, the party requesting the award of fees must prove by clear and convincing evidence that, as a matter of fact, the case is exceptional. Second, if a case is found to be exceptional, the court must then determine whether an award of attorney's fees is warranted. See e.g., J.P. Stevens Co., Inc. v. Lex Tex, Ltd, Inc., 822 F.2d 1047, 1050 (Fed. Cir. 1987); Carroll Touch, Inc. v. Electron Mechanical Systems, Inc., 15 F.3d 1573, 1584 (Fed. Cir. 1993). Exceptional circumstances include vexatious, unjustified, and otherwise bad faith litigation, or the filing of a frivolous law suit. See e.g., Brasseler, U.S.A. I L.P. v. Stryker Sales Corporation, 267 F.3d 1370, 1380 (Fed. Cir. 2001); Hoffman-La Roche Inc. v. Invamed Inc., 213 F.3d 1359, 1365 (Fed. Cir. 2000).

  • In particularly egregious cases of counsel misconduct, consider filing a motion for attorney's fees combined with a motion seeking sanctions under 28 U.S.C. § 1927. Section 1927 provides that any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct." Id. "Underlying the sanctions provided in . . . § 1927 is the recognition that frivolous . . . arguments waste scarce judicial resources and increase legal fees charged to parties." Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995). Sanctions under § 1927 are properly awarded in cases with "evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court." Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998). The Court can also make such an award under its inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 35-51, 111 S. Ct. 2123, 2128-36, 115 L. Ed. 2d 27 (1991).

D. Rule 58 – Entry of Judgment

1. Separate Document Requirement

Rule 58 imposes the "separate document" requirement: "A judgment should be a selfcontained document, saying who has won and what relief has been awarded, but omitting the reasons for this positions, which should appear in the court's opinion." The judgment must be separate from the Court's opinion or any memorandum explaining the rationale for the judgment. See Massey Ferguson Div. of Varity Corp. v. Gurley, 51 F.3d 102, 104-05 (7th Cir. 1995) (court order not self-contained if it refers to other proceedings or documents, and order here referred to prior order). While the separate document requirement seems straightforward, courts sometimes fail to comply with this simple requirement. United States v. Haynes, 158 F.3d 1327, 1331 (D.C. Cir. 1998) (separate document requirement of Rule 58 is not met by three page "Memorandum Opinion & Order" that includes recitation of procedural history of case, district court's reasoning in making its disposition, and citations to cases and statutes in support of disposition). Additionally, an oral order is not enough to create a final judgment.

  • To ensure that the Court complies with the separate document requirement, submit a proposed order for the Court or move for entry of judgment on a separate document under Rule 58(d). Rule 58 was amended in 2002 to remove a former provision that prohibited submitting forms of judgment except as directed by the court.

2. Form Of Judgment

In the event that a plaintiff and defendant have both been awarded different amounts of damages, one party will be a net creditor of the other.

  • In such a case, seek entry of a single judgment instead of having separate judgments entered. Having a single judgment will prevent the net debtor from attempting to enforce a judgment against the net creditor and protects the net creditor in the event that the net debtor refuses to pay the judgment. Western Indus. Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1207 (7th Cir. 1984).

3. Registration Of Judgment For Enforcement In Other Districts

Under 28 U.S.C. § 1963, a party may register a judgment "by filing a certified copy of the judgment in any other district . . . when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown" (emphasis added). To enforce a judgment before it becomes final by appeal or by expiration of appeal, a party will need a court order to have the judgment registered in other jurisdictions. The "good cause" showing can be made by showing that the defendant has substantial property in the other district and insufficient in the rendering district to satisfy the judgment. See Associated Business Tel. Sys. v. Greater Capital, 128 F.R.D. 63 (D.N.J. 1989).

Normally, the judgment debtor will receive notice by way of a written motion that the judgment creditor seeks to register the judgment in another jurisdiction. Such notice would give the judgment debtor an opportunity to move its assets out of the jurisdiction in which the judgment would be registered.

  • File an ex parte application for the good cause order under seal, seeking to waive notice of the application to the judgment debtor, and seeking to have an order entered under seal.

4. Key Dates Triggered By Entry Of Judgment

Entry of judgment under Rule 58 triggers a number of dates.

  1. Renewed Motion for JMOL – Fed. R. Civ. P. 50(b) – 10 days
  2. Motion to Amend Findings or Judgment – Fed. R. Civ. P. 52(b) – 10 days
  3. Motion for New Trial – Fed. R. Civ. P. 59(a) – 10 days
  4. Motion to Alter or Amend Judgment – Fed. R. Civ. P. 59(e) – 10 days
  5. Motion For Attorney.s Fees –. Fed. R. Civ. P. 54(d)(2)(B) – 14 days
  6. File Notice of Appeal – Fed. R. App. Proc. 4(a)(1)(A) - 30 days

E. Rule 59(a) – New Trials

Rule 59(a) permits a party to file a motion for a new trial on all or part of the issues decided. Fed. R. Civ. P. 59(a). The Federal Circuit defers to the law of the appropriate regional circuit on such a consideration. See Celeritas Technologies, Ltd. v. Rockwell Intern. Corp., 150 F.3d 1354, 1358 (Fed. Cir. 1998). The Federal Circuit reviews a denial of a motion for new trial for an abuse of discretion. DMI, Inc. v. Deere & Co., 802 F.2d 421, 427 (Fed. Cir. 1986).

Typical grounds for granting a new trial are that the verdict is against the weight of the evidence, that the damages are excessive, or that for some other reason the trial was unfair. A motion for new trial may also raise questions of law arising out of substantial errors in the admission or rejection of evidence or the giving or refusal of jury instructions. Boehringer Ingelheim Vetmedica, Inc. v. Schering Plough Corp., 166 F. Supp. 2d 19, 28 (D.N.J. 2001).

A new trial motion is addressed to the discretion of the trial court. A new trial may be granted even when substantial evidence supports the jury.s verdict. Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994). In ruling on a new trial motion, the court need not view the evidence in the light most favorable to the verdict winner. Holzapfel v. Town of Newburgh, N.Y., 950 F. Supp. 1267, 1272 (S.D.N.Y. 1997).

A motion for a new trial must be filed no later than 10 days after the entry of judgment, regardless of when or whether the parties receive notice of the entry of judgment. The 10 day period may not be continued or waived by the court or the parties. United States v. RG&B Contractors, Inc., 21 F.3d 952, 954-56 (9th Cir. 1994) (late motion is time barred).

  • Wait until the entry of judgment and serve a written motion, stating with particularity the grounds for the motion. A written motion avoids any problem as to the validity of an oral motion, and whether subsequent entry of a judgment impliedly denied the motion for new trial made before the entry of the judgment. Mosier v. Federal Reserve Bank of N.Y., 132 F.2d 710, 710-12 (2d Cir. 1942) (subsequent entry of contrary judgment impliedly denied motion for a new trial).

F. Rule 59(e) – Amendment of Judgment

A motion to alter or amend judgment pursuant to Rule 59(e) may not be granted where to do so would undermine the jury’s fact-finding role and trample on the defendant’s seventh amendment right to a jury trial. Robinson v. Watts Detective Agency, 685 F.2d 729, 742 (1st Cir. 1982). The purpose behind the enactment of Rule 59(e) was "to mak[e] clear that the district court possesse[d] the power to rectify its own mistakes in the period immediately following the entry of judgment." Norman v. Arkansas Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996). Rule 59(e) motions "serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence." Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). A district court has broad discretion in determining whether to grant a motion to alter or amend judgment, and will not be reversed, absent a clear abuse of discretion.

G. Rule 60 – Relief From Judgment

The district court may grant relief from the judgment for various reasons. Fed. R. Civ. P. 60(b). Rule 60(b) provides, in relevant part, that: "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding" under specified circumstances, including: "(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Because a ruling on a Rule 60 motion is a purely procedural question not unique to patent law, the Federal Circuit reviews district court rulings on such motions under the law of the regional circuit. University of West Virginia, Bd. of Trustees v. VanVoorhies, 342 F.3d 1290, 1293 (Fed. Cir. 2003). The Federal Circuit reviews the district court’s ruling under Rule 60(b) to determine whether an abuse of discretion occurred. See Fraige v. American-National Watermattress Corp., 996 F.2d 295 (Fed. Cir. 1993).

However, "[a] district court should grant a Rule 60(b) motion only upon an adequate showing of exceptional circumstances." United States v. Tracts 10 & 11 of Lakeview Heights, 51 F.3d 117, 120 (8th Cir. 1995). Rule 60(b) is to be given a liberal construction so as to do substantial justice and " ’to prevent the judgment from becoming a vehicle of injustice.’" MIF Realty, L.P. v. Rochester Assocs., 92 F.3d 752, 755-56 (8th Cir. 1996).

II. Interlocutory Appeals

A. Interlocutory Review Of Orders By The Federal Circuit

1. Interlocutory Appeals Under 28 U.S.C. § 1292(a)

Interlocutory Orders are provided for under 28 U.S.C. § 1292. To be appealable, an interlocutory order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separately from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S. Ct. 1133, 99 L. Ed. 2d 296 (1988); Quantum Corp. v. Tandon Corp., 940 F.2d 642 (Fed. Cir. 1991). After the Federal Circuit ruled that it lacked discretionary authority to review interlocutory decisions of the district courts under 28 U.S.C. § 1292(b), Congress amended the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164) to confer jurisdiction on the Federal Circuit. Pub. L. No. 98-620, § 412(a). 28 U.S.C. § 1292(c)(1). See In re Precision Screen Machines, Inc., 729 F.2d 1428 (Fed. Cir. 1984).

Interlocutory orders of district courts granting, continuing, modifying, refusing or dissolving injunctions may be appealed as a matter of right. 28 U.S.C. § 1292(a)(1). Orders that do not address the merits of the case, but relate to pretrial procedural matters are not "interlocutory." Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24, 87 S. Ct. 193, 17 L. Ed. 2d 23 (1966) (holding an order denying a motion for summary judgment not interlocutory). Orders relating to matters such as discovery or stay proceedings are .interlocutory. but are generally not immediately appealable. DSM Resins, U.S., Inc. v. EMS-American Grilon, Inc., 14 U.S.P.Q.2d (BNA) 1891, 1892 (Fed. Cir. 1990).

To establish that an interlocutory order is immediately appealable under 28 U.S.C. § 1292(a)(1), the appellant usually must establish that: (1) the interloctory order has the practical effect of denying an injunction; (2) the order has irreparable consequences; and (3) the order can be effectively challenged only by an immediate appeal. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S. Ct. 993, 67 L. Ed. 2d 59, (1981). District court orders involving injunctive relief are immediately appealable regardless of whether all other issues have been finally adjudicated by such tribunal. King Instrument Corp. v. Otari Corp., 814 F.2d 1560, 1562 (Fed. Cir. 1987).

2. Interlocutory Appeals Under 28 U.S.C. § 1292(b)

Under 28 U.S.C. § 1292(b), the district court has the discretion to certify questions for immediate appeal of an otherwise nonreviewable interlocutory order, when the .order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.. Id.; See Hodosh v. Block Drug Co., Inc., 833 F.2d 1575 (Fed. Cir. 1987). The purpose of appeals under 28 U.S.C. § 1292(b) is to accelerate appellate review of select portions of a litigation in order to avoid harm from a possible erroneous order or wasted litigation expense. See Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1359 (Fed. Cir. 2003).

B. Interlocutory Appeals Of Claim Construction Rulings

After the Federal Circuit.s ruling in Markman, one district court predicted that "parties will seek an immediate interlocutory appeal to avoid the possibility of dual trials should the Federal Circuit reverse the trial court’s claim construction on appeal." Elf Atochem N. Am., Inc. v. Libbey-Owens-Ford Co., 894 F. Supp. 844, 857 (D. Del. 1995). In November 1996, the Federal Circuit ended speculation about whether it would accept interlocutory appeals of claim construction rulings when it refused to accept a case certified for interlocutory appeal after a Markman hearing. Flores v. Union Pacific R.R., No. Misc. 474, 1996 WL 673316 at *1 (Fed. Cir. Nov. 14, 1996) ("[W]e determine that granting the petition is not in the interest of judicial efficiency."). Years later, and after many requests, the Federal Circuit still has not accepted a claim construction ruling for interlocutory appeal. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1479 (Fed. Cir. 1998) (Newman, J., concurring) (stating the "Federal Circuit has thus far declined all such certified questions").

Given the Federal Circuit's unwavering stance on interlocutory review, and the often controlling nature of claim construction rulings on the outcome of the case, the issue arises, what is the fastest and most economical way to obtain Federal Circuit review of a claim construction ruling.

If the parties agree that a district court's claim construction ruling can lead to only one outcome on the issue of infringement or invalidity, the parties can jointly move for judgment in favor of the party who prevailed on claim construction. In Schering Corp. v. Amgen, Inc., 35 F. Supp. 2d 375 (D. Del. 1998), after an unfavorable claim construction ruling, Schering moved for entry of judgment that Amgen did not infringe the patent in suit. The district court entered judgment and dismissed Amge's counterclaims without prejudice. The parties did not dispute that the Federal Circuit had jurisdiction, and the Federal Circuit did not raise the issue of its jurisdiction. Schering Corp. v. Amgen Inc., 222 F.3d 1347 (Fed. Cir. 2000).

Alternatively, if the parties dispute that the claim construction is essentially dispositive, one or both parties may file motions for summary judgment on the issues of infringement or invalidity. If a party prevails on the motion, the parties can request certification under Fed. R. Civ. P. 54(b) along with voluntary dismissal without prejudice of the remaining claims to put the case in position for appeal.

III. Stays Pending Appeal

A party may appeal a district court order granting an injunction. See 28 U.S.C. § 1292(c)(1). Fed. R. App. P. 8(a)(1) provides that a party may seek a stay of that order, pending appeal. In deciding whether to grant a stay, pending appeal, the Federal Circuit considers "the movant’s chances of success on the merits and weighs the equities as they affect the parties and the public." E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987). Specifically, the court analyzes: (1) whether the movants have made a strong showing that they are likely to succeed on the merits; (2) whether the movants will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other side; and (4) where the public interest lies. Standard Havens Prods. v. Gencor Indus., 897 F.2d 511, 512 (Fed. Cir. 1990). To obtain a stay, a movant must establish a strong likelihood of success on the merits or, at least demonstrate a substantial case on the merits provided that the harm factors militate in its favor. Hilton v. Braunskill, 481 U.S. 770, 778, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987).

  • Failure by the District Court to provide an order granting an injunction which sets forth the reasons for its issuance, and specific terms may result in a vacated injunction if the enjoined party brings a motion for a stay pending appeal. In two unpublished decisions, district court injunctions that failed to comply with Fed. R. Civ. P. 65(d) were vacated as being unsupported or not adequately specific. Collins v. Platts, 2004 WL 2429805 (Fed. Cir. 2004); Vari-Lite, Inc. v. Gruppen, 1999 WL 669528 (Fed. Cir. 1999). To avoid vacatur of an injunction on a motion for stay pending appeal, submit to the District Court a proposed injunction order compliant with Rule 65(d).
  • To ensure stay of an execution of judgment, be sure to post a supersedeas bond. Jack Frost Laboratories, Inc. v. Physicians & Nurses Mfg. Corp., 1997 WL 306956 (Fed. Cir. 1997).

IV. Requests For Rehearing

With respect to bench trials, a party may move for a rehearing or to amend or correct the findings and conclusions under Fed. R. Civ. P. 52(b) and 59(a).

Alternatively, if the decision below was by jury verdict, make a renewed motion for a directed verdict, or JMOL, or a new trial under Fed. R. Civ. P. 50(a), (b) and 59(a) to overturn an unfavorable verdict.

  • To strengthen findings that could be used on appeal, seek to add to or amend the court's findings. Alternatively, seek to clarify certain of the findings to make a "clearly erroneous" attack or defense on the findings more likely to succeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions