Supreme Court: Failure to Renew Post-Trial Motion Eliminates Possibility of Appeal

Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc, —– U.S. —– (2006).

By Joshua Rich

The Supreme Court, in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., continued its trend of requiring strict compliance with procedural litigation rules. The case arose out of Swift-Eckrich (which does business as ConAgra) sending out cease and desist letters that indicated that it intended to “aggressively protect all of [its] rights under” one of its patents. A recipient of the letter investigated the charge and determined that Unitherm, who was supplying the allegedly infringing process, had invented the patented process years before ConAgra had filed its patent application. Upon learning this, Unitherm sued ConAgra for a Walker Process antitrust violation, alleging that ConAgra had attempted to enforce a patent that was obtained through fraud on the Patent and Trademark Office.

The Supreme Court’s decision arose out of ConAgra’s motion practice at trial. Before the case was submitted to the jury, ConAgra moved for a directed verdict under Rule 50 of the Federal Rules of Civil Procedure, alleging that the evidence was insufficient to support a jury verdict against it. The judge denied the motion and the jury returned a verdict against ConAgra. After the jury verdict, ConAgra then neither renewed its Rule 50 motion to seek judgment as a matter of law nor filed a motion for new trial based on insufficiency of the evidence under Rule 59. On appeal, the question arose whether ConAgra could raise sufficiency of the evidence in light of its failure to renew the Rule 50 motion. The Federal Circuit found that it could (and reversed the jury verdict); the Supreme Court found that it could not.

Unquestionably, a district court cannot reverse a jury’s verdict in the absence of the renewal of a motion for directed verdict; the Supreme Court found that appellate courts similarly have no power to reverse the jury’s weighing of the evidence absent post-trial motions. Relying on three cases decided soon after World War II, the Court found that appellate courts do not have the power to apply the rules flexibly and consider the sufficiency of the evidence in the absence of a post-verdict motion. While some of the circuit courts had read some flexibility into Rule 50, the Court indicated that no flexibility was appropriate – without renewal of the Rule 50 motion, an appellate court cannot consider the sufficiency of the evidence.

While not specific to IP cases, the Unitherm case is important for IP cases because it forces the hand of litigators in such cases. Often, given page limitations and circumstances of trial, parties in IP cases are forced to choose which arguments to present to the trial court and which to drop. Now, it is clear that any arguments dropped from post-verdict motions will be off limits before the appellate courts. As a result of the Court’s decision, any party that thinks that there may be some chance it will want to raise sufficiency of the evidence on appeal will have to reserve space in its briefing papers to raise the argument. Similarly, trial counsel must pay special attention in the swirl of events after trial, as any deficiency in the post-trial briefing could drastically narrow the matters the appellate court can consider.

Note: Joshua Rich is a partner at MBHB LLP in Chicago where he litigates intellectual property cases. Mr. Rich has a background in biochemistry.  However, he has handled patent cases in a variety of technology areas as well as trademark, copyright, trade secret, and contract issues.