Failure To Object To Jury Instructions Kills Invalidity Counterclaim

In Flexuspine, Inc. v. Globus Medical, Inc., Nos. 17-1188, 17-1189 (Fed. Cir. Jan. 19, 2018), the Federal Circuit affirmed a district court's decision denying motions to amend the judgment to include an invalidity determination.

Flexuspine had sued Globus for infringing patents covering spinal implants in the Eastern District of Texas.  At trial, the district court adopted a verdict form proposed by Flexuspine that included a "stop instruction," which instructed jurors to only answer invalidity questions if they first answered affirmatively to prior infringement questions.  Globus did not object to the verdict form. 

The jury, however, initially ignored the "stop instruction" and returned verdicts of both noninfringement and invalidity.   The court then instructed the jury to follow the "stop instruction," and the jury returned a verdict of noninfringement, but not invalidity.  After judgement of noninfringement was entered, Globus moved to amend the judgment to