The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Prior to the jury's verdict in this case, the defendants moved for judgment as a matter of law on four points: infringement, indirect infringement, willful infringement, and damages. The case went to the jury under Fed.R.Civ.P. 50(b), and the defendants have renewed that motion. Rule 50 authorizes the entry of judgment as a matter of law if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1). "'In other words, the question is simply whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of the plaintiff.'" Khan v. Bland, 630 F.3d 519, 523 (7th Cir. 2010). Because the plaintiff prevailed at trial, we construe the facts strictly in his favor. Although the court examines the evidence to determine whether the jury's verdict was based on that evidence, the court does not make credibility determinations or weigh the evidence. Whitehead v. Bond, _F.3d_, 2012 WL 1813683, 5 (7th Cir. 2012). It is the defendants' burden to show that no reasonable jury could have found for plaintiff even when the evidence is viewed in a light most favorable to him. Denius v. Dunlap, 330 F.3d 919, 927-28 (7th Cir. 2003).
Defendants argue that plaintiff did not meet his burden of proof with respect to infringement, failing to present any evidence that the functional, "generally fluid tight seal" element of claims 2, 3, and 4 of the '726 patent is present in the accused B & C couplers. They submit that plaintiff's technical expert witness, Steven Kaiser, admitted that he didn't know whether the alleged sealing surface of the B & C coupler operated to form a generally fluid tight seal. Further, they argue that plaintiff introduced only conclusory expert testimony concerning whether the angle formed by the rear face of the thread of the B & C coupler is "approximately perpendicular" so as to satisfy a necessary element of claim 12. Defendants add that plaintiff also failed to present any relevant evidence establishing that seventeen of the nineteen different models of B & C couplers include each and every element of the asserted claims of the '726 patent as is required to prove infringement.
Defendants begin with the element of a "fluid tight seal" and argue that plaintiff failed to prove that the accused B & C coupler's alleged sealing surface, which is a flat surface between the inner threads of the coupler and an interior protruding stop in the center of the coupler, "cooperate[d] with an exterior surface of the first conduit to form a generally fluid tight seal therebetween." They point to a portion of testimony from plaintiff's expert, Steven Kaiser, which begins with a discussion of this sealing element of the '726 patent. (Dkt. # 478-2, Trial Trans., at 357-59). Mr. Kaiser explained that the patent discloses a "self-tapping" feature, meaning "a thread is created by the part [i.e. the threaded coupler] itself." Defense counsel's questioning went on from there:
Q. Sharp point 69 of tooth 62 cuts exterior diameter 51 of conduit 34. Is that to say that the sharp teeth of the threads cut the exterior diameter of the conduit or the pipe?
Q. As it's being threaded on?
Q. And creates the threaded profile or grooves 63 upon exterior perimeter during installation of female connector 40 upon the conduit 34. So that's to say that the threads and the sharp points with the self-tapping characteristics are cutting grooves into the exterior of the conduit, yes?
A. Yes. (Dkt. # 478-2, at 358). Counsel then moved on to the sealing surface language from claim 2 of the '726 patent:
Q: . . . The conduit coupling of claim 1, further comprising a sealing surface disposed between the threaded portion and the protrusion, and, the sealing surface operable to cooperate with an exterior surface of the first conduit to form a generally fluid tight seal therebetween. So the generally fluid tight seal therebetween is talking about the space between the sealing surface and the exterior of the conduit; is that right?
A. That would form a seal, yes. (Dkt. # 478-2, at 358-59).
Defendants argue that this amounted to an acknowledgment from Mr. Kaiser "that the sharp threads on the [accused] B & C couplers cut grooves into the exterior of the conduit, which defendants submit obviously would prevent a fluid tight seal from forming between the flat surface and the grooved exterior surface of the conduit." (Defendants' Renewed and Consolidated Motion for JMOL ("JMOL"), at 6)(emphasis in original). The only thing obvious about the argument is that it is flawed. First, it was never an issue in this case whether the Lozon coupler had a self-tapping feature that made grooves on the outside of the conduit as it was screwed onto it. Nor was it ever disputed that the coupler was water tight. Indeed, these facts were conceded. Thus, Mr. Kaiser's acknowledgment of the fact that the coupler had a self-tapping feature that resulted in grooves is of no help to the defendants' theory of the case.
Second, Mr. Kaiser never conceded either in his discussion about the patent or in his discussion about the coupler, itself, that the grooves prevented a water tight seal -- the point now claimed to be "obvious." Apart from Mr. Kaiser's testimony, the evidence was undisputed that the Lozon coupler and the B & C coupler were water tight. Yet both had grooves in the conduits onto which they were screwed. Obviously then, the grooves on the outer surface of the conduit did not prevent a water tight seal. Thus, no part of Mr. Kaiser's testimony supports the defendants' "submi[ssion that the grooves] obviously would prevent a fluid tight seal from forming between the flat surface and the grooved exterior surface of the conduit." (JMOL at 3).
Third, apart from the fact that the defendants' contention is hopelessly at odds with the undisputed evidence, there is nothing "obvious" about the matter. Patent cases almost invariably involve matters of complexity that require expert elucidation. They seldom, if ever, involve matters of indisputable obviousness. This case was no exception.
The defendants further insist that Mr. Kaiser "was forced on cross-examination to concede he does not know whether the grooves cut in the exterior of the conduit prevent there from being a fluid type seal." (JMOL, at 7). This conclusion is based on an excerpt from the transcript, which the motion quotes thusly:
Q. Now, in preparing your analysis you didn't do any testing at all to confirm that there's a generally fluid tight seal between the sealing land and the exterior of the conduit, did you?
A. We did not have that method of testing.
Q. You didn't do any pressure testing?
Q. You didn't do any water testing?
A. No, we don't have that type of equipment.
Q. So you don't know whether or not as you sit here now the grooves of the channels that are cut in the exterior of the conduit prevent there from being a generally fluid tight seal between the exterior of the conduit with the channels cut in it and the sealing surface, do you?
A. I would not know that. (Motion, at 7)(Emphasis supplied).
The problem is that the Motion has altered and misquoted the transcript. Here is what the defendants' lawyer actually asked at trial:
Q. So you don't know whether or not, as you sit here, how the grooves of the channels that are cut in the exterior of the conduit prevent there from being a generally fluid tight seal between the exterior of the conduit with the channels cut in it and the sealing surface, do you?
A. I would not know that. (Dkt. # 478-2, at 359-60)(Emphasis supplied).
In the trial transcript, commas set off the phrase ",as you sit here,"and the phrase, ",as you sit here," is followed by the word "how" -- not "now" as the defendants' Motion reflects. The alteration could scarcely be more significant. It is apparent that the cross-examiner had intended to ask Mr. Kaiser if he had a present opinion -- ",as you sit here," -- whether the serrated surface prevented there being a water tight seal. He obviously changed his mind mid-question (perhaps fearing the answer) and completed the thought by assuming that the grooves did prevent a water tight seal. Hence, the word "how" immediately follows ", as you sit here,". In short, the question as asked was not whether, in Mr. Kaiser's opinion, the grooves cut in the exterior surface of the conduit precluded a water tight seal, but rather "how" there could be a water tight seal in light of the serrated surface of the conduit resulting from the coupler's self-taping feature. The question as asked thus subtly assumed a critical fact not in evidence, and Mr. Kaiser, taking the question as subtly posed said he would not know "how" that would happen. Gottcha. Once the awkwardly phrased question as actually asked is altered in the Motion, the defendants can comfortably (but incorrectly) say that Mr. Kaiser was forced to concede on cross-examination that he "does not know whether the grooves cut in the exterior of the conduit prevent there from being a fluid tight seal." (Motion at 7).
Whether this revision of the transcript was intentional need not be decided. If it was purposeful, disturbing questions about the way in which the Motion was prepared are raised. See Correa v. Hospital San Francisco, 69 F.3d 1184, 1192, 1197 (1st Cir. 1995); Pinkham v. Sara Lee Corp, 983 F.2d 824, 833 (8th Cir. 1992); Cox v. CFTC, 138 F.3d 268, 275 (7th Cir. 1998); United States v. Pacelli, 491 F.2d 1108, 1120 (2nd Cir. 1974). But whether intentional or inadvertent, what was done was "quite misleading." Walters v. National Association of Radiation Survivors, 473 U.S. 305, 322 (1985).
Of course, the plaintiff, not the defendants, had the burden of proof at trial, and it is his position that there is sufficient evidence that the grooves on the exterior surface of the conduct made as the coupler screws onto the conduit, do not prevent a fluid tight seal and that the sealing land did cooperate to ...