United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Joseph F. Bataillon Senior United States District Judge
This matter is before the court on Exmark's motions for enhanced damages and for attorney fees. Filing Nos. 646 and 648.
This action was tried to a jury on September 8-11, 2015, and September 14-17, 2015, resulting in a compensatory award to the plaintiff for patent infringement in connection with Briggs's original mower deck in the amount of $24, 280, 330 and a finding of willful infringement. See Filing No. 599, Verdict.
Facts recited in the court's opinions on other post-trial motions are incorporated herein and need not be repeated. See Filing No. 687, Memorandum and Order (laches) at 1-11; Filing No. 688, Memorandum and Order at 1-3 (judgment as a matter of law on damages and willfulness). The record supports the jury's finding of willful infringement.
There is evidence that suggests that Briggs copied Exmark's design. See, e.g., Filing No. 611, T. Tr., Vol. II at 210-12; T. Ex. 36 (Engineering change form); Filing No. 614, T. Tr., Vol. V at 965. Testimony adduced at trial suggests Dale Baumbach, then Ferris's acting engineering manager, instructed its technician to modify its mower deck as shown in a sketch that is strikingly similar to Exmark's Lazer Z mower deck, shortly after he had observed flow control baffles on Exmark's mower. See Filing No. 615, T. Tr., Vol. VI at, 1073; Filing No. 616, T. Tr., Vol. VII at 1500-01; T. Ex. 521, Marshall Dep. at 54, 59, 62-64, 124-25; T. Ex. 9, Exmark deck; T. Ex. 42, Baumbach sketch. A change order was subsequently issued, ostensibly intended to "improve cut quality." Filing No. 611, T. Tr., Vol. II at 210; T. Ex. 36. There is no evidence to suggest that Baumbach obtained the idea from any other source than the Exmark Lazer Z, and Briggs had an Exmark Lazer Z in its possession in 1996. See Filing No. 615, T. Tr., Vol. VI at 1073.
The head of Briggs's commercial lawn mower business, Philip Wenzel, testified that its predecessor corporation, Ferris, had an Exmark mower in its possession in 1996 and Wenzel and his technical engineer personally drove the mower and observed the flow-control baffles on the mower. Filing No. 615, T. Tr., Vol. VI at 1073; Filing No. 616, T. Tr., Vol. VII at 1500. Shortly thereafter, its designer produced a sketch of a redesigned mower deck strikingly similar to Exmark's. See T. Exs. 9 and 42. The modification was implemented to improve cut quality. Filing No. 611, T. Tr., Vol. II at 210; T. Ex. 36. Even Briggs’s own witnesses conceded it was “possible” there was copying. Filing No. 614, T. Tr., Vol. V at 965 (Philip Wenzel testimony); Filing No. 615, T. Tr., Vol. VI at 1072 (Philip Wenzel testimony); Filing No. 616, T. Tr., Vol. VII at 1508 (John Marshall testimony).
Though the '863 patent had not been issued in 1996, Wenzel testified that he knew that obtaining a patent can take years. Filing No. 615, T. Tr., Vol. VI at 1092. He stated that it is not enough for a company to check for a patent if it copies a design, it must also check for later-issued patents. Id. at 1092-93. Although Wenzel testified that Briggs (then Ferris) had a policy of performing patent clearances on new product designs prior to their introduction, it presented no evidence that it conducted any sort of patent clearance relative to its infringing flow control baffles or the mowers they were employed on. Id. at 1043-48. He characterized Ferris's patent clearing practices was flawed for not doing so. Id. at 1093.
Briggs later possessed at least four Exmark mowers that were marked with patent numbers, as well as Exmark brochures referring to "patented flow control baffles. Filing No. 615, T. Tr., Vol. VI at, 1093-98, 1123-34. Wenzel stated that Briggs knew that companies in the industry mark their products with patent numbers and that the reason they do so is to notify competitors of their patent rights. Id. at 1090-91. Two Briggs employees-Mr. Wenzel and Mr. Marshall-admitted seeing Exmark patent markings on Exmark mowers in Briggs’ possession. Filing No. 615, Trial Tr. vol. VI at 1099; T. Ex. 521, Marshall Dep. Tr. at 139-41. Wenzel testified that Briggs should have known about Exmark’s ‘863 patent. Id. at 1138-39.
Wenzel was deposed in the Scag case in May, 2002. Filing No. 615, T. Tr., Vol. VI at 1139-40; 1147-49; Filing No. 392-20, Index of Evid., Ex. 32, Toro V. Scag, No. 01cv279 ("Scag litigation"), Wenzel Dep. Tr. One of Scag's lawyers represented Wenzel at the deposition. Filing No. 615, T. Tr., Vol. VI at 1147-49. He also stated he was shown drawings from one of the patents in the lawsuit before his deposition. Filing No. 614, T. Tr., Vol. V at 974-79.
Briggs continued to market and sell infringing mowers until 2014, four years after this suit was filed.
This court found Briggs's noninfringement arguments with respect to the original mower designs were "meaningless, contrary to the court's claim construction, and presented a strained and nonsensical reading of the asserted claims." Filing No. 476, Memorandum and Order at 28. In opposition to Exmark's motion for summary judgment on the infringement issue, Briggs admitted that the infringing products met every limitation of claim 1 except for the requirement that the front flow control baffle “extends away from” the closed side wall. Filing No. 374, Briggs's Brief at 16-19.
The record shows the patent was examined and found valid three times after it was issued in 1999. See T. Ex. 1, ''863 Patent at 12-14. Briggs continued to contest validity and contests validity to this day. Filing No. 644, Laches Proc. Tr., Vol. II at 273. It continued to sell out its infringing inventory well into 2014. Filing No. 615, T. Tr., Vol. VI at 1189-90; T. Ex. 523; Filing No. 644, Laches Proc. Tr., Vol. II at 277.
There is evidence that Briggs used Exmark's patent to sell mowers and take business away from Exmark. Filing No. 613, T. Tr., Vol. IV at, 688-91; T. Exs. 299, 311, 313, 314, 323. Wenzel told Briggs's distributors not to make a big splash” regarding mulching products because “Toro is aggressively pursuing legal action on . . . ‘questionable ...