United States Court of Appeals 

for the Federal Circuit ______________________ 

NORDOCK, INC.,

Plaintiff-Appellant

v.

SYSTEMS INC., DBA POWERAMP, DBA DLM INC., 

DBA MCGUIRE,

Defendant-Cross-Appellant

______________________ 

2014-1762, -1795

______________________ 

Appeals from the United States District Court for the 

Eastern District of Wisconsin in No. 2:11-cv-00118-RTR, 

Chief Judge Rudolph T. Randa.

______________________ 

Decided: September 29, 2015 

______________________ 

JEFFREY SCOTT SOKOL, Sokol Law Office, Milwaukee, 

WI, argued for plaintiff-appellant.

PHILIP P. MANN, Mann Law Group, Seattle, WA, argued for defendant-cross-appellant. Also represented by 

TIMOTHY JOHN BILLICK, I; JOHN WHITAKER, Whitaker Law 

Group, Seattle, WA.

 ______________________ 

Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
 2 NORDOCK, INC. v. SYSTEMS INC. 

O’MALLEY, Circuit Judge.

Nordock, Inc. (“Nordock”) filed suit against Systems, 

Inc. (“Systems”) in the United States District Court for 

the Eastern District of Wisconsin alleging infringement of 

U.S. Design Patent No. D579,754 (“the D’754 Patent”), 

which claims the ornamental design of a lip and hinge 

plate for a dock leveler. A jury found that Systems’ hydraulic dock levelers infringe the D’754 Patent, and that 

the patent is not invalid. The district court entered 

judgment awarding Nordock $46,825 in damages as a 

reasonable royalty. 

Both parties filed post-trial motions to amend the 

judgment pursuant to Rule 59 of the Federal Rules of 

Civil Procedure. Specifically, Nordock filed a motion to 

amend the judgment regarding damages, or in the alternative, for a new trial. Systems also sought to amend the 

judgment, arguing that there was insufficient evidence to 

support the jury’s finding of infringement with respect to 

Systems’ 6 1⁄2 foot dock levelers. The district court denied 

both motions. Nordock, Inc. v. Sys., Inc., No. 11-C-118, 

2014 WL 3786277 (E.D. Wis. July 31, 2014) (“Rule 59 

Decision”). 

Nordock appeals the district court’s decision denying 

its request for a new trial on damages. Systems crossappeals from the court’s decisions denying its oral motion 

for judgment as a matter of law (“JMOL”) as to validity of 

the D’754 Patent and denying its post-trial Rule 59(e) 

motion. Because we find that the district court erred in 

its assessment of design patent damages under 35 U.S.C. 

§ 289, we vacate the damages award and remand for a 

new trial on damages. With respect to Systems’ crossappeal, we affirm the district court’s decisions: (1) denying 

Systems’ motion for JMOL as to the validity of the D’754 

Patent; and (2) denying Systems’ Rule 59(e) motion with 

respect to the 6 1⁄2 foot dock levelers. Accordingly, we 
NORDOCK, INC. v. SYSTEMS INC. 3

affirm in part, vacate in part, and remand for further 

proceedings. 

BACKGROUND

Nordock and Systems are rivals in the loading dock 

device industry. Nordock Inc. v. Sys. Inc., 927 F. Supp. 2d 

577, 582 (E.D. Wis. 2013). “Both companies design, 

manufacture, and sell dock levelers which are mechanical 

devices used to create a bridge between loading dock 

surfaces and the surfaces of truck load beds.” Id. 

On December 23, 2002, Denis Gleason, the President 

of Nordock, filed U.S. Patent Application No. 10/328,279 

(“the ’279 Application”), which ultimately issued as U.S. 

Patent No. 6,834,409 (“the ’409 Patent”). The ’409 Patent 

shows a dock leveler with a deck lift assembly that “has a 

durable combined lip lug and header plate hinge construction.” ’409 Patent, col. 3, ll. 15-16. Although Nordock 

applied for utility patent protection for the “lug hinge 

design,” it abandoned prosecution after the application 

was rejected over the prior art. Nordock, 927 F. Supp. 2d 

at 588. 

A. The D’754 Patent

The D’754 Patent—entitled “Lip and Hinge Plate for a 

Dock Leveler”—was filed as a divisional application 

claiming priority to the ’279 Application. As noted, the 

D’754 Patent claims the ornamental design of a lip and 

hinge plate for a dock leveler, as shown and described 

therein. Figure 1, shown below, provides a general perspective view of the front end of the leveler as claimed:
 4 NORDOCK, INC. v. SYSTEMS INC. 

The D’754 Patent states that Figure 1 “is a perspective 

view showing the lip and hinge plate for a dock leveler 

with the lip extended, and the hinge plate secured to a 

deck frame shown in broken lines.” 

B. Systems’ Accused Devices

Systems has manufactured and sold dock levelers 

since the 1960s. Nordock, 927 F. Supp. 2d at 594. For 

approximately 40 years, Systems made its levelers with a 

“piano style” hinge. Id. Systems’ President—Edward 

McGuire—testified that Systems moved to using a header 

plate and lug style hinge design “for cost reasons,” and 

began selling the accused levelers in October 2005. Id. 

In its complaint, Nordock accused three different sizes 

of Systems’ mechanically operated dock levelers (“LMP” 

and “LMD”), and three different sizes of hydraulically 

operated dock levelers (“LHP” and “LHD”) of infringing 

the D’754 Patent. The sizes are based on the width of the 

levelers, which are available in widths of 6 feet, 6 1⁄2 feet, 
NORDOCK, INC. v. SYSTEMS INC. 5

and 7 feet. According to Systems’ expert—Richard F. 

Bero—Systems’ average sale price for an LHP/LHD 

leveler is $2,516, and its operating profit per unit is $433. 

Joint Appendix (“J.A.”) 6552. Its average sale price for an 

LMP/LMD leveler is $1,840, with an operating profit per 

unit of $215. Id. 

C. Procedural History

On January 28, 2011, Nordock filed suit against Systems alleging that it infringes the D’754 Patent by making, offering for sale, and selling hydraulic and 

mechanical dock levelers incorporating the claimed lip lug 

and hinge plate design. Nordock further alleged that the 

infringement is willful. 

Systems filed an Answer and Counterclaim for declaratory judgment of non-infringement and invalidity. In 

its counterclaim, Systems alleged that the D’754 Patent is 

not infringed and is invalid for failure to comply with the 

standards of patentability and enforceability set forth in 

35 U.S.C. §§ 102, 103, and 112. Systems also asserted a 

number of affirmative defenses, including laches, estoppel, and unclean hands. 

1. Cross-Motions for Summary Judgment

The parties filed cross-motions for summary judgment 

in September 2012. Specifically, Nordock moved for 

summary judgment as to validity and enforceability of the 

D’754 Patent. In that motion, Nordock argued that the 

design has sufficient ornamentation, the D’754 Patent is 

not barred by the claims of related utility patent applications, the design is valid under 35 U.S.C. §§ 102, 103, and 

112, and enforcement is not barred by reason of laches, 

estoppel, or unclean hands. Nordock, 927 F. Supp. 2d at 

589. 

For its part, Systems moved for summary judgment of 

invalidity and noninfringement, arguing that: (1) the 

D’754 Patent is invalid because it is primarily functional 
 6 NORDOCK, INC. v. SYSTEMS INC. 

and contains no protectable ornamental features; (2) to 

the extent there are any features that are not purely 

functional, those features are obvious in view of the prior 

art; and (3) a comparison between the patented design 

and Systems’ products reveals that Systems does not 

infringe. Systems requested that the district court hold a 

hearing on the motion and construe the scope of the D’754 

Patent claim. 

The district court conducted a claim construction

hearing on January 30, 2013. Id. at 587. Shortly thereafter, the court issued a written decision addressing several 

motions, including the parties’ cross-motions for summary 

judgment. In relevant part, the court construed the single 

claim of the D’754 Patent as “[t]he ornamental design of a 

lip and hinge plate for a dock leveler, as shown and described,” including the seven figures (drawings) of the 

patent. Id. at 588. The court explained that “the broken 

lines in the figures do not form any part of the claim,” and 

that: 

[t]he ornamental design of the lip and hinge plate 

as shown and described includes nine pairs of 

tear-drop shaped lugs, attached to the header 

plate and lip to form the hinge, and the pin that is 

threaded between the lug pairs. The shape of the 

lug attached to the header plate is not identical to 

that attached to the lip, and is elongated as shown 

in Figures 6 and 7 to close the gap between it and 

the deck.

Id. 

Next, the court noted that the design incorporates 

four primarily utilitarian elements: the lugs, the pin, the 

header plate, and the lip. Id. at 589. The court found 

that the “relative positions of the header plate and the lip 

which are at the front portion of the dock leveler are 

dictated by the function of a dock leveler; that is, to create 

a bridge between the truck and the loading dock.” Id. 
NORDOCK, INC. v. SYSTEMS INC. 7

And the “lugs and the pin form a hinge which is essential 

to the function of the dock leveler.” Id. The court found, 

however, that there are ornamental aspects of the design: 

“[w]hile the header plate is used to tie the supporting 

beams and create a box type of structure, there are alternatives. There are dock levelers that do not have header 

plates, and there are dock levelers with partially open 

fronts, and other styles.” Id. (internal citation omitted). 

And, there are hinges that have no lugs. The court further found that the “shape, spacing, pairing and the 

difference in shapes between the lugs attached to the 

header plate and the lip are also ornamental features of 

the ’754 patent.” Id. 

Turning to the parties’ motions for summary judgment, the court granted Nordock’s motion with respect to 

anticipation, obviousness, prosecution estoppel, laches, 

equitable estoppel, and unclean hands. Id. at 611. The 

court found that summary judgment was not appropriate 

with respect to functionality, however. Id. at 605. In 

reaching this conclusion, the court noted that: 

(1) “Nordock’s advertising touts the functional qualities of 

its lip, lug and header plate design;” (2) “there is a great 

variation in dock leveler design;” (3) there is a “genuine 

dispute of material fact regarding whether many elements in the design are non-functional;” and 

(4) “Nordock’s design is not the only way to do things.” Id. 

2. Trial

The district court conducted a jury trial from March 

18 through March 26, 2013, on the issues of infringement, 

validity, and damages. At trial, Nordock’s damages 

expert—Dr. Stan V. Smith—testified that Systems’ net 

profit for the sale of 1,514 hydraulic levelers (LHP/LHD) 

was $912,201. J.A. 6009; J.A. 6373. Systems’ damages 

expert—Richard F. Bero—testified that “royalty was the 

proper form of damages, that $15 per allegedly infringing 

dock leveler was the appropriate amount of royalty, and 
 8 NORDOCK, INC. v. SYSTEMS INC. 

that, based on the 6,000 accused units, total damages 

were about $91,650.” Rule 59 Decision, 2014 WL 

3786277, at *4. In the alternative, Bero testified that 

Systems’ profit on the accused lip and hinge plate was 

“less than $15 per unit, so lost profits would have been 

less than $91,650.” Id. 

At the close of Nordock’s case in chief and again at the 

conclusion of all of the trial testimony, Systems moved for 

JMOL that the D’754 Patent is invalid because it is 

functional, and that no infringement could be found with 

respect to Systems’ 6 1⁄2 foot hydraulic dock leveler because there was no evidence of that leveler presented at 

trial. The district court denied those motions on the 

record and allowed the case to go to the jury.

The jury returned a mixed verdict, finding that Systems’ LHP and LHD levelers infringed the D’754 Patent, 

but that the LMP and LMD levelers were not infringing. 

The jury awarded Nordock $46,825 as a reasonable royalty, and indicated on the verdict form that Systems’ profits 

were $0. The jury also found that Systems failed to prove 

that the D’754 Patent is invalid. As discussed in more 

detail below, as soon as the verdict was returned, Systems 

indicated a desire to renew its earlier motions.

3. Written Post-Trial Motions

After trial, both parties filed motions to amend the 

judgment pursuant to Rule 59(e). Systems argued that, 

because there was no evidence presented at trial regarding its 6 1⁄2 foot dock leveler, the jury’s finding of infringement as to that particular leveler was unsupported 

by any evidence and must be discounted. Rule 59 Decision, 2014 WL 3786277, at *2. Systems did not file a 

written motion for JMOL. Nordock filed a motion to 

amend the judgment regarding damages, or in the alternative, for a new trial on damages. Specifically, Nordock 

argued that, pursuant to 35 U.S.C. § 289, it was entitled 
NORDOCK, INC. v. SYSTEMS INC. 9

to recover Systems’ profits for its sales of the LHP and 

LHD levelers found to infringe. 

On July 31, 2014, the district court issued an order 

that: (1) denied Systems’ Rule 59(e) motion; and 

(2) granted Nordock’s Rule 59(e) motion with respect to 

pre-judgment interest and its entitlement to postjudgment interest under 28 U.S.C. § 1961, but denied it in 

all other respects. With respect to Systems’ motion, the 

court found that “the trial testimony and exhibits support 

the jury’s finding that Systems’ 6-, 6 1⁄2-, and 7-foot wide 

LHP/LHD levelers infringed Nordock’s ’754 Patent.” Id. 

at *2. 

Next, the court denied Nordock’s motion as to § 289 

damages “because the jury reasonably based its verdict on

the evidence presented.” Id. at *4. The jury was instructed that it “could award Nordock compensatory damages in 

the form of its own lost profits or a reasonable royalty, or 

it could recover Systems’ profits as a measure of potential 

recovery with respect [to] the sale of each unit of an 

infringing product.” Id. The court explained that “the 

jury heard testimony regarding lost profits, [but] it chose 

to award a reasonable royalty.” Id. The court concluded, 

therefore, that the jury’s verdict “was consistent with the 

instructions, and a reasonable basis exists in the testimony and evidence presented at trial to support the jury 

verdict.” Id. 

4. Final Judgment

On July 31, 2014, the district court entered an 

amended final judgment in favor of Nordock and against 

Systems in the amount of $46,825 for Systems’ non-willful 

infringement of Nordock’s D’754 Patent with regard to 

Systems’ LHP and LHD Series dock levelers. The amended judgment awarded Nordock an additional $10,170.09 

in prejudgment interest. 
 10 NORDOCK, INC. v. SYSTEMS INC. 

Nordock filed its notice of appeal and Systems filed its 

notice of cross-appeal. We have jurisdiction under 28 

U.S.C. § 1295(a)(1). 

DISCUSSION

I. NORDOCK’S APPEAL

On appeal, Nordock argues that the district court 

erred when it denied Nordock’s motion for a new trial on 

§ 289 damages. We apply regional circuit law in reviewing the denial of a motion for a new trial. Silicon 

Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 798 (Fed. 

Cir. 2010). In the Seventh Circuit, a denial of a request 

for a new trial is reviewed for an abuse of discretion. Id. 

(citing ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 

F.3d 541, 543 (7th Cir. 2003)). The Seventh Circuit has 

indicated that a “new trial is appropriate if the jury’s 

verdict is against the manifest weight of the evidence or if 

the trial was in some way unfair to the moving party.” 

Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408, 

414 (7th Cir. 2015) (internal citation and quotation marks 

omitted).

According to Nordock, a new trial is necessary “to determine § 289 damages as the District Court’s decision’s 

adopting a finding that Systems’ profits are $0 or do not 

need to be determined is without factual or legal basis 

and is against the substantial weight of the credible 

evidence.” Appellant Br. 21. Systems responds that the 

jury’s award of $46,825 is supported by substantial evidence and should not be disturbed. As discussed below, 

we agree with Nordock that a new trial is necessary to 

address damages under 35 U.S.C. § 289. 

When a patent is infringed, the patentee is entitled to 

“damages adequate to compensate for infringement, but 

in no event less than a reasonable royalty for the use 

made of the invention by the infringer.” 35 U.S.C. § 284. 

There are two alternative categories of compensatory 
NORDOCK, INC. v. SYSTEMS INC. 11

damages available under § 284: “the patentee’s lost profits 

and the reasonable royalty he would have received 

through arms-length bargaining.” Lucent Techs., Inc. v. 

Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009). 

In the case of design patent infringement, a patentee 

can recover damages under § 284 or under 35 U.S.C. 

§ 289, which is entitled “[a]dditional remedy for infringement of design patent.” See Catalina Lighting, Inc. v. 

Lamps Plus, Inc., 295 F.3d 1277, 1290 (Fed. Cir. 2002). 

Section 289 provides as follows: 

Whoever during the term of a patent for a design, 

without license of the owner, (1) applies the patented design, or any colorable imitation thereof, 

to any article of manufacture for the purpose of 

sale, or (2) sells or exposes for sale any article of 

manufacture to which such design or colorable imitation has been applied shall be liable to the 

owner to the extent of his total profit, but not less 

than $250, recoverable in any United States district court having jurisdiction of the parties.

Nothing in this section shall prevent, lessen, or 

impeach any other remedy which an owner of an 

infringed patent has under the provisions of this 

title, but he shall not twice recover the profit 

made from the infringement.

35 U.S.C. § 289. Therefore, the plain language of the 

statute permits design patentees to claim either $250 or 

the infringer’s “total profit” on sales of “any article of 

manufacture” to which the patented design was applied.

We have recognized that where, as here, “only a design patent is at issue, a patentee may not recover both 

infringer profits and additional damages under § 284.” 

Catalina Lighting, 295 F.3d at 1291; see also Robert 

Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1310 n.1 

(Fed. Cir. 2013) (en banc) (“An infringer’s profits are, of 
 12 NORDOCK, INC. v. SYSTEMS INC. 

course, no longer an available remedy for the infringement of a utility patent. See 35 U.S.C. § 284. Such profits, however, remain available in cases of design patent 

infringement. See 35 U.S.C. § 289.”); Signode Corp. v. 

Weld-Loc Sys., Inc., 700 F.2d 1108, 1113 n.6 (7th Cir. 

1983) (“An infringer of a design patent is liable to the 

patent owner to the extent of his total profit or $250, 

whichever is greater, under 35 U.S.C. § 289.”). Accordingly, a design patentee can recover either (1) total profits 

from the infringer’s sales under § 289, or (2) damages in 

the form of the patentee’s lost profits or a reasonable 

royalty under § 284, or (3) $250 in statutory damages 

under § 289, whichever is greater. See Catalina Lighting, 

295 F.3d at 1291. 

At trial, the district court instructed the jury, in part,

that: 

In this case, Nordock seeks Systems’ profits from 

sales of products alleged to infringe the ’754 Design Patent. If you find infringement, and do not 

find the ’754 Design Patent is invalid, you are to 

award Nordock Systems’ total profit attributable 

to the infringement. Systems’ “total profit” means 

the entire profit on the sale of the article to which 

the patented design is applied, or with which it is 

used and not just the portion of profit attributable 

to the design or ornamental aspects of the patent. 

Jury Instructions at 41, Nordock, Inc. v. Sys., Inc., No. 

2:11-cv-118 (E.D. Wis. Mar. 25, 2013), ECF No. 166 (“Jury 

Instructions”). 

After the jury awarded Nordock $46,825 as a reasonable royalty and found that Systems’ profits were $0, 

Nordock asked the court to amend the judgment regarding damages or order a new trial. In its motion, Nordock 

argued that Systems’ own expert—Richard Bero—

calculated a net operating profit of at least $433 per unit 

for the hydraulic levelers. The district court rejected 
NORDOCK, INC. v. SYSTEMS INC. 13

Nordock’s arguments on grounds that the jury received 

extensive damages instructions and chose to award 

Nordock compensatory damages in the form of a reasonable royalty. Rule 59 Decision, 2014 WL 3786277, at *4.

On appeal, Nordock argues that: (1) the district court 

relied on Systems’ legally deficient “cost savings” methodology to determine that Systems’ profits were less than 

$15 per dock leveler; (2) the record is devoid of any evidence that Systems’ profits on its sales of the infringing 

levelers was $0; and (3) the district court erred in its 

interpretation of the jury instructions. We agree with 

Nordock on each point. 

A. “Cost Savings Methodology”

Nordock argues that the district court’s decision denying a new trial on damages was erroneous because it 

relied upon Bero’s so-called “cost savings methodology.” 

At trial, Bero testified that, “because Nordock had not 

established that it incurred lost profits, they were not 

applicable damages.” Rule 59 Decision, 2014 WL 

3786277, at *4. Bero opined that royalty damages were 

the proper form of damages, and that $15 per allegedly 

infringing dock leveler was appropriate. Id. 

In the alternative, Bero testified that, “as an alternative form of damages, the profits associated with the lip 

and hinge plate—the ornamental design of the lip and 

hinge plate is approximately $15 or less per dock leveler.” 

Tr. of Jury Trial–Test. of Richard Bero held on Mar. 21-

22, 2013 at 15:19-23, Nordock, Inc. v. Sys., Inc., No. 2:11-

cv-118 (E.D. Wis. Mar. 25, 2013), ECF No. 178. Bero 

further explained that:

The alternative is the profits attributable to—that 

Systems earned on its lip and hinge plate ornamental design. And the cost savings that Systems 

received as a result of using that design are something again less than $15 per unit. So on that lip 
 14 NORDOCK, INC. v. SYSTEMS INC. 

and hinge plate design the profitability attributable that Systems earned—this is defendant’s profits—was something less than $15 per unit. It’s 

the same number as the royalty damages. It’s actually less than that.

Now again, I understand Nordock’s position is 

that it should get the entire dock leveler, and to 

the extent that’s the case the number would be, 

you know, higher obviously.

Id. at 69:13-23 (emphasis added). Based on Bero’s testimony, the district court found that the jury was free to 

select a reasonable royalty as the appropriate form of 

damages. Rule 59 Decision, 2014 WL 3786277, at *4

(stating that, “according to Bero, Systems’ profit on the 

accused products was less than $15 per unit”). 

We conclude that the district court erred in relying on 

Bero’s “cost savings” methodology, rather than on the 

gross profits methodology required by law and described 

in the jury instructions. There are several problems with 

this so-called “cost savings” approach. First, it is inconsistent with the fact that § 289 provides for recovery of 

the infringer’s total profits. Indeed, this court has interpreted § 289 to require “the disgorgement of the infringers’ profits to the patent holder, such that the infringers 

retain no profit from their wrong.” Nike Inc. v. Wal-Mart 

Stores, Inc., 138 F.3d 1437, 1448 (Fed. Cir. 1998). Profits 

are based on gross revenue after deducting certain allowable expenses. Id. at 1447 (noting that the district court 

subtracted certain expenses from revenues to arrive at a 

profit figure). Consistent with this precedent, the district 

court instructed the jury that:

Nordock is entitled to all profit earned by Systems 

that is attributable to the infringement. Profit is 

determined by deducting certain expenses from 

gross revenue. Gross revenue is all of Systems’ 

receipts from using the design in the sale of the 
NORDOCK, INC. v. SYSTEMS INC. 15

infringing products. Nordock has the burden of 

proving Systems’ gross revenue by a preponderance of the evidence.

Jury Instructions at 41. Rather than using gross revenue

as a starting point, Bero used his “cost savings” methodology, which was limited to the “lip and hinge plate” portion 

of the dock levelers. In doing so, Bero ignored the fact 

that total profits are based on the article of manufacture 

to which the D’754 Patent is applied—not just a portion of 

that article of manufacture. 

Systems maintains that Nordock is not entitled to recover profits on the entire dock leveler, but rather only 

those profits attributable to the “lip and hinge plate” 

shown in the D’754 Patent. To the contrary, however, we 

recently reiterated that apportioning profits in the context 

of design patent infringement is not appropriate, and that 

“Section 289 explicitly authorizes the award of total profit 

from the article of manufacture bearing the patented 

design.” Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983, 

1001-02 (Fed. Cir. 2015) (rejecting Samsung’s attempt to 

limit the profits awarded to the “portion of the product as 

sold that incorporates or embodies the subject matter of 

the patent”); see also Nike, 138 F.3d at 1441-42 (discussing the legislative history of § 289 and Congress’s decision 

to remove “the need to apportion the infringer’s profits 

between the patented design and the article bearing the 

design”).1 

1 Decisions predating this court’s formation similarly concluded that § 289 authorizes the award of the infringer’s total profits. See e.g., Schnadig Corp. v. Gaines 

Mfg. Co., 620 F.2d 1166, 1171 (6th Cir. 1980) (Section 289 

“provides a single measure of relief applicable to all cases 

of design patent infringement,” “assures that the profit to 

the wrongdoer is fully extracted,” and “place[s] the pa-

 
 16 NORDOCK, INC. v. SYSTEMS INC. 

The D’754 Patent is entitled “Lip and Hinge Plate for 

a Dock Leveler,” and makes clear that the claimed design 

is applied to and used with a dock leveler. And, as 

Nordock points out, the evidence and testimony at trial 

demonstrated that the levelers are welded together. 

Importantly, there was no evidence that Systems sold a 

“lip and hinge plate” separate from the leveler as a complete unit. Appellant Br. 30. We therefore reject Systems’ attempts to apportion damages to the lip and hinge 

plate where it is clear that the article of manufacture at 

issue is a dock leveler. Systems’ “article of manufacture” 

arguments also fail in light of the district court’s § 289 

jury instruction, which correctly stated that “Systems’ 

‘total profit’ means the entire profit on the sale of the 

article to which the patented design is applied, or with 

which it is used and not just the portion of profit attributable to the design or ornamental aspects of the patent.” 

Jury Instructions at 41.

Bero used an improper methodology and his testimony was premised on an incorrect understanding of the 

relevant article of manufacture. This testimony confused 

and misled both the district court and the jury into believtentee in the shoes of the infringer.”). For example, in 

Bergstrom v. Sears, Roebuck & Co., 496 F. Supp. 476, 495 

(D. Minn. 1980), the court rejected the defendant’s argument that a design patentee can only recover profits 

under § 289 “which are attributable to the design or 

ornamental aspects of the patent, rather than the entire 

profits on the sale of the patented article.” Id. The court 

concluded that the use of the phrase “total profit” in the 

statute “undermines defendants’ arguments, as it is 

unlikely that Congress would have used such all encompassing language if it intended that a design patentee 

could only recover profits attributable solely to the design 

or ornamental qualities of the patented article.” Id. 

 
NORDOCK, INC. v. SYSTEMS INC. 17

ing that Nordock was only entitled to recover Systems’ 

profits attributable to a small portion of the dock levelers 

at issue. Because no reasonable jury could have believed 

Bero’s testimony that profits were less than $15 per unit,

and because the district court erred in relying on Bero’s 

“cost savings” methodology in denying Nordock’s motion 

for a new trial on § 289 damages, we find it necessary to 

reverse and remand this case to the district court for a 

new trial on damages. On remand, Nordock is entitled to 

a proper determination of Systems’ profits based on the 

appropriate gross revenue methodology, not the so-called 

“cost savings” approach. 

B. Evidence of Systems’ Total Profits

Nordock also argues that there is no credible evidence 

that Systems’ total profits for its sales of the infringing 

levelers were $0. We agree.

As noted, the jury found infringement with respect to 

1,457 of Systems’ hydraulic dock levelers. On the verdict 

form, the jury awarded Nordock a reasonable royalty of 

$46,825, and indicated that Systems’ profits were $0. 

According to Nordock, however, the manifest weight of 

the evidence shows that Systems’ profits were over 

$600,000 for its infringing LHP/LHD levelers. 

First, Nordock points to Dr. Smith’s testimony and 

expert report which indicated that Systems had net 

pretax profits of $912,201 on its sales of 1,514 LHP/LHD 

levelers. Appellant Br. 36. In his expert report, Bero 

found that Systems’ operating profit per unit for its 

hydraulic levelers was $433. J.A. 6552. And, at trial, 

Bero’s damages slide show indicated that Systems sold 

1,457 accused hydraulic dock levelers. J.A. 6684. Taken 

together, therefore, Bero’s report and testimony reveal 

that Systems’ total profits on the infringing hydraulic 

levelers were at least $630,881. Based on this evidence of 

record, Nordock argues that Systems’ total profit for the 

LHP/LHD levelers is either $630,881, using Bero’s infor-
 18 NORDOCK, INC. v. SYSTEMS INC. 

mation, or $912,201, using Dr. Smith’s information. 

Under either formulation, the evidence showed that 

Systems’ profits were over $630,000—a far cry from $0. 

Next, Nordock argues that, even if the jury disregarded the experts’ testimony with respect to gross revenue 

and relied on Bero’s “cost savings” methodology, the jury 

should have found that Systems had some profits on its 

infringing LHP/LHD levelers—not $0. Appellant Br. 38. 

Indeed, Bero testified that Systems’ use of the lug hinge

saved roughly $5 per unit on the manufacture of the 

hydraulic levelers. J.A. 6707. Systems responds that the 

jury was free to discount Dr. Smith’s opinion and adopt 

Bero’s opinion that Systems’ profits associated with “the 

ornamental design of the lip and hinge plate is approximately $15 or less per dock leveler.” Appellee Response 

Br. 25. 

While Systems is certainly correct that the jury is entitled to believe one expert over the other, as previously 

discussed, Bero’s attempt to limit profits to only the “lip 

and hinge plate” is inconsistent with § 289. Nordock is 

entitled to a determination of Systems’ total profits for the 

sale of the levelers found to infringe. Because there is no 

credible evidence that Systems’ profits on its sales of the 

1,457 infringing levelers were $0, we conclude that the 

jury’s verdict was “against the manifest weight of the 

evidence” such that a new trial is warranted. Glickenhaus, 787 F.3d at 414. 

C. Jury Instructions 

Finally, Nordock argues that the district court misinterpreted the “Patent Damages Burden of Proof” jury 

instruction “to mean that if there was a determination of 

damages under § 284, then there need be no determination of damages under § 289.” Appellant Br. 46. The 

district court correctly instructed the jury as follows:
NORDOCK, INC. v. SYSTEMS INC. 19

For design patents, Nordock can prove either actual damages, known as compensatory damages, 

or it may prove Systems’ profits as its measure of 

potential recovery with respect to the sale of each 

unit of an infringing product. As compensatory 

damages, Nordock may prove either its own lost 

profits, or a reasonable royalty for the design patent. Nordock is not entitled to recover both compensatory damages and Systems’ profits on the 

same sale.

Jury Instructions at 39. As previously discussed, the 

court also instructed the jury that “[i]f you find infringement, and do not find the ’754 Design Patent is invalid, 

you are to award Nordock Systems’ total profit attributable to the infringement.” Id. at 41. 

 Based on these instructions, Nordock contends that it 

“is entitled to Systems’ total profits for the infringing LHP 

and LHD levelers under § 289 because these profits are 

greater than the amount found under § 284 and are in 

excess of the minimum fixed by § 289.” Appellant Br. 47. 

Systems responds that Nordock waived any objections it 

might have had to the court’s instructions by failing to 

object to them when given. Systems further argues that, 

under the district court’s instructions, “the jury had the 

option of awarding either a reasonable royalty or Systems’

profits.” Appellee Response Br. 46.

Counsel for Nordock conceded at oral argument that 

he did not object to either the burden of proof instruction 

or the § 289 instruction because they are accurate statements of the law. Instead, counsel maintains on appeal

that the district court misinterpreted the jury instructions 

to read out § 289. Oral Argument at 1:50-2:17, available 

at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=

2014-1762.mp3 (“We didn’t object to the 289 jury instruction because it specifically states that Systems’ profits 

w[ere] to be determined by gross revenues. We have no 
 20 NORDOCK, INC. v. SYSTEMS INC. 

problem with that at all. With respect to the jury instruction—the burden of proof jury instruction—I believe it 

reads correctly. The judge is misinterpreting it to basically read out § 289.”).

The record reveals that both the district court and the 

jury were confused with respect to the interplay between 

§ 284 and § 289. In its decision denying Nordock’s motion 

for a new trial on damages, the district court explained 

that the jury was instructed that it could award Nordock 

compensatory damages “or it could recover Systems’ 

profits as a measure of potential recovery with respect [to] 

the sale of each unit of an infringing product.” Rule 59 

Decision, 2014 WL 3786277, at *4 (emphasis added). The 

court then recognized Dr. Smith’s testimony that Systems’ 

profits on the sale of the infringing products were 

$845,954, and Bero’s contrary calculation that Systems’ 

profits would have been less than $91,650. Id. Though 

the court acknowledged that there was evidence of Systems’ profits (as distinct from the evidence of Nordock’s 

lost profits), it explained that, “the jury heard testimony 

regarding lost profits, [but] it chose to award a reasonable 

royalty. The jury was free to discredit Smith’s testimony 

regarding Nordock’s lost profits or find that Bero’s testimony was more convincing and persuasive.” Id. 

The district court blended its discussion of Nordock’s 

compensatory damages with the evidence of Systems’ 

profits. In doing so, the court overlooked a critical point: 

the fact that Nordock could recover only one type of 

damage on each sale—either (1) Nordock’s lost profits or a 

reasonable royalty or (2) Systems’ total profits—did not 

absolve the jury of its obligation to determine the amount 

of Systems’ total profits for purposes of determining 

damages under § 289. To the extent the district court 

believed that the jury could simply choose between awarding damages under § 284 or § 289, it is incorrect. As the 

court’s jury instructions correctly stated, if the jury finds 

infringement, and does not find the D’754 Patent invalid, 
NORDOCK, INC. v. SYSTEMS INC. 21

it is “to award Nordock Systems’ total profit attributable 

to the infringement.” Jury Instructions at 41. Only 

where § 289 damages are not sought, or are less than 

would be recoverable under § 284, is an award of § 284 

damages appropriate. On remand, the court will have an 

opportunity to revisit and restructure its jury instructions

on damages consistent with this opinion so as to provide 

the jury with a clear and appropriate understanding of its 

obligation to determine Systems’ profits pursuant to 

§ 289. 

II. SYSTEMS’ CROSS-APPEAL

Systems cross-appeals from the district court’s decisions denying its motion for JMOL that the D’754 Patent 

is invalid as purely functional. Systems also argues that 

the district court erred in denying its motion for JMOL of 

non-infringement with respect to the 6 1⁄2 foot dock leveler. We address these issues in turn. 

A. Validity

As a threshold matter, Nordock argues that Systems 

did not preserve the issue of validity for appeal because it 

did not raise it in a Rule 50 or Rule 59 motion. According 

to Nordock, because Systems failed to file a motion contesting the sufficiency of the evidence with respect to the 

validity of the D’754 Patent, this court should reject 

Systems’ cross-appeal challenging validity in its entirety. 

Systems responds that it moved for JMOL that the 

D’754 Patent is invalid twice before the case went to the 

jury and again after the verdict was reached and read in 

open court. As explained below, because we find Systems’ 

Rule 50(b) motion inadequate, we conclude that Systems 

has not preserved its validity arguments for appeal.

Rule 50 of the Federal Rules of Civil Procedure “sets 

forth the procedural requirements for challenging the 

sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges—prior to submission 
 22 NORDOCK, INC. v. SYSTEMS INC. 

of the case to the jury, and after the verdict and entry of 

judgment.” Unitherm Food Sys., Inc. v. Swift-Eckrich, 

Inc., 546 U.S. 394, 399 (2006). Rule 50(a) allows a party 

to challenge the sufficiency of the evidence before the case 

is submitted to the jury. Under that rule, the district 

court can enter judgment against a party who has been 

fully heard on an issue during a jury trial if “a reasonable 

jury would not have a legally sufficient evidentiary basis 

to find for the party on that issue.” Fed. R. Civ. P. 50(a). 

After the verdict and entry of judgment, the losing 

party may renew its challenge to the sufficiency of the 

evidence under Rule 50(b). “A party’s failure to comply 

with Rule 50(b) forecloses any challenge to the sufficiency 

of the evidence on appeal.” Consumer Prods. Research & 

Design, Inc. v. Jensen, 572 F.3d 436, 437 (7th Cir. 2009). 

“A postverdict motion is necessary because 

‘[d]etermination of whether a new trial should be granted 

or a judgment entered under Rule 50(b) calls for the 

judgment in the first instance of the judge who saw and 

heard the witnesses and has the feel of the case which no 

appellate printed transcript can impart.” Unitherm, 546 

U.S. at 401 (citation omitted). Absent a Rule 50(b) motion, “an appellate court is ‘powerless’ to review the 

sufficiency of the evidence after trial.” Ortiz v. Jordan, 

562 U.S. 180, 189 (2011) (citing Unitherm, 546 U.S. at 

405). 

“[T]here is no requirement that [a] Rule 50 motion be 

in writing and be filed with the court; oral motions, in 

which a party specifically invokes the rule, or perhaps 

even colloquy with the court, fulfill the requirements of

Rule 50 in some instances.” Belk, Inc. v. Meyer Corp., 

U.S., 679 F.3d 146, 156 (4th Cir. 2012). Accordingly, 

although “the better practice is for the motion to be in 

writing . . . an oral motion on the record will suffice.” 

Moran v. Raymond Corp., 484 F.2d 1008, 1010 n.1 (7th 

Cir. 1973). If counsel moves for JMOL before the case is 

submitted to the jury, counsel “must specify the judgment 
NORDOCK, INC. v. SYSTEMS INC. 23

sought and the law and facts that entitled the movant to 

the judgment.” Fed. R. Civ. P. 50(a)(2). After the verdict, 

counsel must sufficiently renew the same. Fed. R. Civ. P. 

50(b).

Here, at the close of Nordock’s case in chief, counsel 

for Systems orally moved for JMOL that the D’754 Patent 

is invalid. Counsel stated that: 

We have elicited from the witnesses that have 

testified that they are unable to identify any ornamental features in the drawings that are part of 

the patent in dispute here. Nobody has been able 

to point to anything with specificity. The only answer we were able to get was these things are – 

it’s the overall appearance, but Professor Visser 

himself testified under oath that the general configuration of a dock leveler with an articulated 

hinge, et cetera, is, in fact, functional.

Mr. Gleason himself testified at deposition 

that the entire hinge is functional. And, in fact, 

the witnesses provided by the plaintiff have confirmed themselves that the design, the alleged design is functional. Nobody’s been able to argue 

anything ornamental. Point to anything ornamental. For that reason we believe that no reasonable jury could find that this patent is 

anything other than functional and hence invalid.

Tr. of Jury Trial Excerpt: Def.’s Mot. at Close of Pl.’s Case 

held on Mar. 21, 2013 at 4:12-5:5, Nordock, Inc. v. Sys., 

Inc., No. 2:11-cv-118 (E.D. Wis. Apr. 3, 2015), ECF No. 

234. The district court denied Systems’ motion with 

respect to validity, finding that “the jury should consider 

it.” Id. at 15:20. 

Before the case went to the jury, Systems’ counsel renewed its motions for JMOL on the record. With respect 

to functionality, counsel maintained that “there’s an 
 24 NORDOCK, INC. v. SYSTEMS INC. 

absence of any evidence that anything is ornamental.” Tr. 

of Jury Trial–Vol. 6 held on Mar. 25, 2013 at 1234:25-

1235:1, Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D. 

Wis. Apr. 3, 2015), ECF No. 233. Counsel further argued 

that, “[i]f you remove each of the admittedly functional 

elements of the drawing, you end up with a blank sheet of 

paper.” Id. at 1235:8-10. The court denied Systems’

motion, concluding that a reasonable factfinder could 

determine that the overall design is not dictated by function. Id. at 1240:6-10. 

Because counsel for Systems specifically addressed 

the insufficiency of the evidence with respect to the ornamental features of the D’754 Patent, we conclude that 

these motions were sufficient under Rule 50(a). The 

question, therefore, is whether Nordock’s post-trial motion was sufficient to preserve the issue for appeal pursuant to Rule 50(b). “Because the sufficiency of postjudgment motions is a procedural matter not unique to 

patent law, the law of the Seventh Circuit sets the standard by which we judge the adequacy of” Systems’ motion. 

Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1347 

(Fed. Cir. 2005). 

Rule 7(b)(1) of the Federal Rules of Civil Procedure 

requires that motions must “state with particularity the 

grounds for seeking the order.” Fed. R. Civ. P. 7(b)(1)(B). 

The Seventh Circuit has determined that the rule’s 

standard for particularity means “reasonable specification.” Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 

757, 760 (7th Cir. 2001) (quoting Martinez v. Trainor, 556 

F.2d 818, 819-20 (7th Cir. 1977)). “The purpose of the 

particularity requirement in Rule 7 is to afford notice of 

the grounds and prayer of the motion to both the court 

and to the opposing party, providing that party with a 

meaningful opportunity to respond and the court with 

enough information to process the motion correctly.” 

Registration Control Sys., Inc. v. Compusystems, Inc., 922 

F.2d 805, 807 (Fed. Cir. 1990). 
NORDOCK, INC. v. SYSTEMS INC. 25

The record reveals that, after the jury reached its verdict, the district court asked counsel whether there were 

any post-trial motions. At that point, counsel for Systems 

had the following exchange with the court:

MR. MANN: Well, I guess at this point, Judge, 

just as a routine matter whatever motions we 

made during the trial, JMOL and so forth, we 

would renew those motions to the extent that they 

are necessary. . . .

Everything we made we renew. I’m not sure what 

that is, but just for the record whatever we said 

before— 

THE COURT: Yeah, and everything the Court 

said about those is the same also, so— 

MR. MANN: Okay. Fair enough, Judge.

Tr. of Jury Trial–Vol. 7 held on Mar. 26, 2013 at 1305:12-

1306:5, Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D. 

Wis. Apr. 3, 2015), ECF No. 235. Thereafter, although 

Systems filed a Rule 59(e) motion with respect to infringement, it did not file any post-verdict motion as to 

validity. 

We conclude that counsel for Systems failed to renew 

the motion for JMOL as to validity with sufficient particularity to satisfy the Seventh Circuit’s “reasonable specification” standard. Fort James, 412 F.3d at 1347 (quoting 

Martinez, 556 F.2d at 819-20). While there is no requirement that a Rule 50(b) motion be in writing, it is counsel’s 

responsibility to ensure that the record is sufficiently 

clear for both the district court and the appellate court 

reviewing the record to understand the grounds therefor. 

Merely renewing “whatever w[as] said before” is inadequate, particularly when qualified with the statements 

that the renewal is only “to the extent necessary” and that 

counsel is unaware of what the motions were. We there-
 26 NORDOCK, INC. v. SYSTEMS INC. 

fore may not consider Systems’ challenge to the sufficiency of the evidence with respect to validity. 

Even if we were to consider Systems’ arguments, 

however, we would conclude that substantial evidence 

supports the jury’s finding that Systems failed to prove

that the D’754 Patent is invalid. It is well established 

that a design patent “only protects the novel, ornamental 

features of the patented design.” OddzOn Prods., Inc. v. 

Just Toys, Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997). If a 

patented design is “primarily functional rather than

ornamental, the patent is invalid.” PHG Techs., LLC v. 

St. John Cos., 469 F.3d 1361, 1366 (Fed. Cir. 2006) (citation and quotation marks omitted). The determination of 

whether a patented design is dictated by function “must 

ultimately rest on an analysis of its overall appearance.” 

Berry Sterling Corp. v. Pescor Plastics, Inc., 122 F.3d 

1452, 1455 (Fed. Cir. 1997). We have recognized that 

assessing various factors may help determine whether a 

claimed design, as a whole, is dictated by functionality:

whether the protected design represents the best 

design; whether alternative designs would adversely affect the utility of the specified article; 

whether there are any concomitant utility patents; whether the advertising touts particular 

features of the design as having specific utility; 

and whether there are any elements in the design 

or an overall appearance clearly not dictated by 

function.

PHG Techs., 469 F.3d at 1366 (quoting Berry Sterling, 122 

F.3d at 1456); see also High Point Design LLC v. Buyers 

Direct, Inc., 730 F.3d 1301, 1315 (Fed. Cir. 2013) (“Assessing [these five] factors may help determine whether a 

claimed design, as a whole, is ‘dictated by’ functional 

considerations.”).

Here, the testimony and evidence at trial demonstrated that: (1) Nordock intended the design to be distinctive 
NORDOCK, INC. v. SYSTEMS INC. 27

and ornamental; (2) the header plate is not necessary to 

the function of a dock leveler; (3) there is a wide range of 

alternate designs available, including an open lug 

frontend design and a standard piano hinge design; and 

(4) the alternate designs available achieve the same 

utilitarian purpose as the patented design. See Tr. of 

Jury Trial–Vol. 2 held on Mar. 19, 2013 at 152:24-153:8, 

Nordock, Inc. v. Sys., Inc., No. 2:11-cv-118 (E.D. Wis. Feb. 

6, 2015), ECF No. 231; see also Tr. of Jury Trial–Vol. 1 

held on Mar. 18, 2013 at 59:21-60:7, Nordock, No. 2:11-cv118 (E.D. Wis. Feb. 6, 2015), ECF No. 230. On this record, there was substantial evidence from which a jury 

could conclude that the claimed design is not dictated by 

function. 

B. Infringement

Systems also argues that the district court erred by 

denying its motion for JMOL of non-infringement of the 

6 1⁄2 foot dock leveler. To the extent Systems crossappeals from the district court’s denial of its motion for 

JMOL of non-infringement, that argument was not 

properly preserved for appeal for the same reason discussed in the context of Systems’ motion for JMOL of 

invalidity: counsel’s Rule 50(b) motion was insufficient. 

Although Systems did not file a post-verdict motion with 

respect to validity, it did file a Rule 59(e) motion seeking 

to amend the judgment on grounds that no evidence was 

presented at trial regarding the accused 6 1⁄2 foot dock 

levelers. The district court denied that motion, and 

Systems’ notice of cross-appeal indicated that it was 

appealing from several adverse rulings, including the 

district court’s denial of its Rule 59(e) motion. See Notice 

of Cross Appeal, Nordock, Inc. v. Systems, Inc., No. 2:11-

cv-118 (E.D. Wis. Aug. 29, 2014), ECF No. 215. Therefore, 

although Systems’ infringement arguments on appeal are 

framed in the context of JMOL, we are reviewing the 

district court’s denial of Systems’ Rule 59(e) motion to 

alter or amend the judgment. We apply regional circuit 
 28 NORDOCK, INC. v. SYSTEMS INC. 

law in reviewing a motion under Rule 59(e). Minton v. 

Nat’l Ass’n of Sec. Dealers, Inc., 336 F.3d 1373, 1378-79 

(Fed. Cir. 2003). The Seventh Circuit reviews the denial 

of a Rule 59(e) motion for abuse of discretion. Zivitz v. 

Greenberg, 279 F.3d 536, 539 (7th Cir. 2002). 

To prevail on a Rule 59(e) motion to amend the judgment, a party must “‘clearly establish’ (1) that the court 

committed a manifest error of law or fact, or (2) that 

newly discovered evidence precluded entry of judgment.” 

Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 

598 (7th Cir. 2012) (citing Harrington v. City of Chicago, 

433 F.3d 542, 546 (7th Cir. 2006)). The Seventh Circuit 

has described “manifest error” as “wholesale disregard, 

misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th 

Cir. 2000). Importantly, Rule 59(e) is not a vehicle for 

reasserting previously rejected arguments. Vesely v. 

Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014) (“Yet we 

have held that a Rule 59(e) motion is not to be used to 

‘rehash’ previously rejected arguments . . . .”). 

The district court denied Systems’ motion to amend 

on grounds that “the trial testimony and exhibits support 

the jury’s finding that Systems’ 6-, 6 1⁄2-, and 7-foot wide 

LHP/LHD levelers infringed Nordock’s ’754 Patent.” Rule 

59 Decision, 2014 WL 3786277, at *2. The court explained that the patent pertains to the “front end” of a 

dock leveler, and the jury saw evidence and heard testimony from Nordock’s president and CEO that “the 6-foot 

leveler and the middle 6-foot portion of the 6 1⁄2- and 7-foot 

levelers are the same.” Id. Because Systems offered no 

evidence to the contrary, the court concluded that a jury 

could reasonably infer that there is no significant difference between the three sizes of levelers. Id. And, because 

both Systems’ and Nordock’s brochures showed only the 6 

and 7 foot levelers, the court found that the jury could 

reasonably infer from the omission of the 6 1⁄2-foot leveler 
NORDOCK, INC. v. SYSTEMS INC. 29

that it is “substantially similar to the 6- and 7-foot levelers.” Id. 

Systems does not rely upon newly discovered evidence. Instead, it argues that Nordock presented zero 

evidence at trial regarding Systems’ 6 1⁄2 foot dock leveler. 

According to Systems, Nordock’s technical expert admitted that he did not review any actual Systems dock leveler in preparing his report, and instead relied on Systems’ 

brochures, none of which included pictures of the 6 1⁄2 foot 

leveler. Systems also points to testimony from its Vice 

President—Mike Pilgrim—who identified differences in 

construction that make the 6 1⁄2 foot leveler distinct from 

both the 6 and 7 foot versions. 

We conclude that the district court did not abuse its 

discretion by denying Systems’ motion to amend the 

judgment with respect to infringement. Even if there was 

no direct evidence presented for the 6 1⁄2 foot dock leveler, 

the jury could reasonably infer infringement based on the 

evidence submitted at trial. We have recognized that a 

“patentee may prove direct infringement . . . by either 

direct or circumstantial evidence.” Liquid Dynamics 

Corp. v. Vaughan Co., 449 F.3d 1209, 1219 (Fed. Cir. 

2006). Indeed, “[t]here is no requirement that direct 

evidence be introduced, nor is a jury’s preference for 

circumstantial evidence over direct evidence unreasonable 

per se.” Id. Given the trial testimony that the middle 6-

foot portion of each leveler is identical, the jury could have 

reasonably inferred that all three sizes of the accused 

dock levelers infringed the D’754 Patent. We, thus, 

conclude that Systems failed to establish that the court 

“committed a manifest error of law or fact.” Blue, 698 

F.3d at 598. 

CONCLUSION 

For the foregoing reasons, we conclude that the district court erred in denying Nordock’s motion for a new 

trial to assess damages pursuant to 35 U.S.C. § 289. We 
 30 NORDOCK, INC. v. SYSTEMS INC. 

therefore vacate the jury’s damages award and remand 

for a new trial on damages. With respect to Systems’ 

cross-appeal, we affirm the district court’s decisions 

denying Systems’ motion for JMOL as to validity and its 

Rule 59(e) motion with respect to infringement of the 6 1⁄2 

foot dock leveler. Accordingly, we affirm in part, vacate in 

part, and remand for further proceedings. 

AFFIRMED IN PART, VACATED IN PART, 

AND REMANDED