“Whale fall” JMOL on willful infringement, jury instructions & interest calculations

Earlier this year a Marshall jury in visiting CAFC Judge Bill Bryson’s court rendered a $20 million verdict in favor of the plaintiff against defendant Eli Lilly.  Several weeks ago Judge Bryson followed up with an order explaining his reasons for several decisions during trial.

Judge Bryson’s order is an example of what I referred to in my talk about JMOLs week before last at Horseshoe Bay as a “whale fall” – the sort of order that can take weeks to fully digest, but if you’re interested in the subject of getting a JMOL on a plaintiff’s claims of willful infringement or on when certain jury instructions are appropriate or how prejudgment interest is calculated it’s worth it.

Our story begins with the defense counsel rising at trial to assert a JMOL as to the plaintiff’s claim of willful infringement…

EDTX Throwback: Claim That Beefmaster Bull Was a Closet Black Angus Dismissed With Prejudice

Bryan v. Jones, 2:05cv109, 2005 WL 1189882 (May 19, 2005)
Division: Marshall
Judge: Leonard Davis
Holding: Defendants’ Motion to Dismiss GRANTED

The next time someone says that the practice of law is dull, send them this case.

This was a case brought by a Beefmaster breeder against the owner of a champion Beefmaster bull named “Soul Man” claiming that “Soul Man” was really a black angus, and not a Beefmaster at all.  More specifically, the dispute was over the fact that “Soul Man” was black instead of brinnel, the color the plaintiff claimed “real” Beefmaster bulls were.

This being East Texas, the plaintiff in this fight over what color a cow should be was represented by her son in law.  Since “Soul Man’s” semen was a hot commodity, so to speak, due to his champion status, the plaintiff claimed that dissemination of his semen as being that of a Beefmaster bull, when it was really not, harmed the breed, and hence her business.  (Which is, essentially the issue UT graduates have with Texas Aggies, but let’s not go there right now).  The defendant (who I am proud to say I got to represent) filed a motion to dismiss under Rule 12(b)(6) claiming that the complaint failed to state a claim on which relief could be granted.

Since the brief was written a little tongue in cheek in honor of the unique facts of the case, including more analysis of the closely analogous “cheerleader cases” than they ever deserved, I have gotten a few requests for it – a copy is attached here Download 00300_def_mtn_dismiss.pdf .  (I mean no disrespect to that line of cases, incidentally – again, in Texas the issue of whether there is a protected Constitutional interest in a fair and impartial cheerleading tryout is at least as significant as arguing over whether a bull can be discriminated against because he happened to be black).

Judge Davis granted the motion, holding that none of the plaintiff’s claims were cognizable under any recognized theory of tort or contract law, and declined to find that they stated  a violation of a protected property interest.

At last report, “Soul Man” has returned to his enviable livelihood wandering the meadows of his native Tennessee, his champion status undisturbed by the U.S. District Court for the Eastern District of Texas.  Would that patent cases were all this much fun.

1451 – Bryan v Jones order