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Thorne Research Inc. v. Xymogen

United States District Court, D. Utah

February 28, 2018

THORNE RESEARCH, INC. and SOFTGEL FORMULATORS, INC., Plaintiffs,
v.
XYMOGEN, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW AND PRECLUSION OF ARGUMENT REGARDING DAMAGES

          Ted Stewart, Judge.

         This matter is before the Court on Defendant's Motion for Judgment as a Matter of Law and Preclusion of Argument Regarding Damages. Defendant made the Motion in writing at the conclusion of Plaintiffs' case-in-chief on February 19, 2018. For the following reasons, the Court denies the Motion.

         I. DISCUSSION

         Federal Rule of Civil Procedure 50(a)(1) provides,

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

         In reviewing a Rule 50 Motion, the Court should review all of the evidence in the record.[1] However, all reasonable inferences are drawn in favor of the non-moving party and the Court may “not make credibility determinations or weigh the evidence.”[2] Judgment as a matter of law is appropriate “only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position.”[3] A judgment as a matter of law is appropriate “if there is no legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law.”[4]

         A. Infringement

         In this matter, Plaintiffs allege that Defendant infringed claims 1 and 5 of the ‘888 patent. Plaintiffs must prove by a preponderance of the evidence that Defendant sold or offered for sale a product that meets all the requirements of the claims and did so without the permission of Plaintiffs during the time the patent was in force.[5]

         Claim 1 of the ‘888 patent is an independent claim that covers:

A crystal-free coenzyme Q10 composition comprising: non-crystalline coenzyme Q10 present in an amount of 5.3% by weight to about 12% by weight based on the total weight of the composition; a solvent selected from the group consisting of conjugated linoleic acid, ethyl ester marine lipids, citrus oils, and combinations thereof; and a carrier oil.

         Claim 5 of the ‘888 patent is dependent on claim 1 and adds the following requirement: “The composition in accordance with claim 1 wherein the solvent comprises conjugated linoleic acid.”

         Drawing all reasonable inferences in favor of Plaintiffs as the non-moving party, the Court finds that Plaintiffs provided sufficient evidence for a reasonable jury to find that Defendant infringed both claim 1 and claim 5 of the ‘888 patent. First, Dr. Ed Brothers testified that he examined the accused products under a light microscope at 640X magnification and was unable to see anything that he could definitively state was a CoQ10 crystal. This satisfies the crystal free or, “non-crystalline requirement.”

         Regarding other ingredients in the accused products, Dr. Abato testified that CoQ10 was present in a weight of approximately 6.89%, which fell within the range provided by claim 1. He also testified that conjugated linoleic acid (“CLA”) was used as a solvent in the accused products, and the accused products contained avocado oil which acted as a carrier oil.

         Defendant argues that Dr. Prestwich's testimony that he did see crystals using polarized light provides uncontroverted evidence that crystals are visible and no reasonable jury could conclude that Xymogen is infringing. This argument fails, however, as the Court must draw all ...


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