The Federal Circuit held that GMS failed to timely preserve and thus waived its objections to the jury instructions, and that the jury instructions did not seriously prejudice GMS or warrant a new trial.
According to the Federal Rules of Civil Procedure, "[o]bjection to the presence or absence of [a jury] instruction must be timely raised during the trial proceeding, and the correct instruction offered and rejected," and "a court may consider a plain error in the instructions that has not been preserved if the error affects substantial rights."
The Federal Circuit explained that, with regard to the infringement test, "GMS has failed to establish that there was any error in the jury instructions on the “ordinary observer,” much less plain error warranting a new trial." With regard to the prior art, the court added that "[g]iven that there was no prior art introduced at trial, no attempt by GMS to introduce the prior art, and no proposed jury instruction on this issue, the purported exclusion of this instruction cannot be error."
Read the case here.