In Flexuspine, Inc. v. Globus Medical, Inc., [2017-1188, 2017-1189] (January 19, 2018), the Federal Circuit affirmed the district court’s decisions denying Globus’s Rule 59(e) motion, denying as moot its Rule 50(b) motion, and granting summary judgment of noninfringement.

Globus complained that the court did not decide the validity of Flexuspine’s patent. but over a month before trial the parties submitted a joint proposed pre-trial order along with proposed jury instructions and verdict forms from each party. Flexuspine’s proposed verdict form included a “stop instruction” which conditioned the submission of invalidity on an affirmative finding of infringement, while Globus’s proposed verdict form did not.  On the second
day of trial, the parties submitted proposed joint final jury instructions but competing verdict forms. Again, Flexuspine’s amended proposed verdict form continued to include the same stop instruction, while Globus’s amended
proposed verdict form did not condition the invalidity question on an infringement finding.

The court finalized the jury instructions, and the district court afforded the parties an opportunity to object to the final jury instructions and
verdict form on the record. The district court went page-by-page through
the final instructions and the verdict form asking the parties if they had any objections. Neither party objected.

The jury returned the verdict form, indicating that the patent was invalid, but the district court determined that the jury had not filled out the verdict form correctly. The district court instructed the jury to retire again with a blank verdict form, review the verdict form, and return a verdict consistent with both questions asked and the district court’s written instructions on the verdict
form. The court then asked, “[d]oes either party object to the Court having sent the jury back to re-execute the verdict form consistent with each instruction included therein?” In response, neither party lodged a formal objection. Globus stated, “[y]our Honor, I was not present at the charge conference but I—as I understand it, or as I thought I understood it, a jury could still be allowed to
pass on the validity of patents even in the absence of a finding of infringement.” The court responded that it had reviewed the verdict form with the parties and
no formal objection had been made at the on-the-record charge conference.
Shortly thereafter, the jury returned a verdict in accordance with the district court’s instructions. This verdict found the claims not to be infringed and left the
other questions unanswered.  It was at this point, after the jury returned its final verdict without answering the validity or damages questions, that Globus lodged its first formal objection.

Globus filed a Rule 59(e) motion requesting that the judgment be amended to
include the jury’s invalidity verdict, and a Rule 50(b) motion for judgment as a matter of law on invalidity, both of which the district court denied.  The Federal Circuit declined to disturb the district court’s proper exercise of its discretion.  The Federal Circuit noted that Globus did not object to the verdict form, and the extent that there was any conflict between the verdict form and jury instructions, the district court clearly instructed the jury on which
instructions should control when it asked the jury to retire again with a blank verdict form and return a verdict consistent with both the questions asked and the stop instructions on the verdict form.