N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ EQUISTAR CHEMICALS, LP, MSI TECHNOLOGY LLC, Plaintiffs

- Appellants

v.

WESTLAKE CHEMICAL CO RPORATION, Defendant

- Cross

- Appellant

______________________

2017

- 1548, 2017

- 1549

______________________ Appeals from the United States District Court for the Eastern District of Texas in No. 6:14

- cv

- 00068

- KN M, Magistrate Judge K. Nicole Mitchell.

______________________

Decided : July 3, 2018

______________________

M ICHAEL A. B ITTNER , Winston & Strawn LLP, Dallas, TX, argued for plaintiffs

- appellants. Also represented by T HOMAS M. M ELSHEIMER ; R OBERT P. C OURTNEY , C ONRAD G OSEN , Fish & Richardson P.C., Minneapolis, MN.

D ARYL J OSEFFER , King & Spalding LLP, Washington, DC, argued for defendant

- cross

- appellant. Also repr esented by J OHN H ANSON B ARR , J R ., J EFFREY L. O LDHAM ,EQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 2

R ICHARD W HITELEY , S TACIANNE W ILSON , Bracewell LLP, Houston, TX.

______________________
Before D YK , M OORE , and O’M ALLEY , Circuit Judges.

D YK , Circuit Judge

. Equistar Chemicals, LP and MSI Technology, LLC (collectively “Equistar”) brought suit for infringement of U.S. Patent No. 7,064,163 (“the ’163 patent”) against Westlake Chemical Corporation (“Westlake”) in the District Court for the Eastern District of Texas. Westlake asserted various counterclaims of invalidity. We affirm the judgment of noninfringement and the judgment of no invalidity with respect to anticipation and obviousness

. We vacate the grant of summary judgment rejecting the

on- sale bar defense , and remand for further proceedings

. B ACKGROUND Adhesive resins are used to bind different layers of polymers together. In food packaging, for example, adh esive resins bind a layer of ethylene vinyl alcohol, which serves as an oxygen barrier, between two layers of food

safe polyethylene. The asserted claims cover a method for producing adhesive resins. This process requires first making a polymer called a polyolefin. Then, the polyolefin is mixed with other ingredients, such as a g raft polymer, in a heated mixer, which creates an adhesive resin

. Equistar asserted independent claim 1 and dependent claims 2, 9, and 10 , and Westlake asserted various inv alidity counterclaims

. Claim 1 , which is representative, reads :

1. A method for producing improved polyol e fin

based adhesive resin, comprising:

a. polymerizing a monomer composition of at least one olefin to a pelletizable pol y olefin;EQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 3

b. mixing with shear mixing, while minimi z ing

cross

- linking, at least 50% by weight based on the polyolefin

- based adhesive resin of the polymerization product fo l lowing polymeriz ation without first pelletizing the pelletizable polyolefi n with at least one g raft polymer or copolymer in a heated mixing device at a te mperature above the melting point of the co mpo nents; and

c. recovering the resulting polyolefin

- based adh esive resin.
’163 pat., col. 8, ll. 28

– 40.

Of relevance to this dispute

, all the asserted claims require that the accused process “minimiz e cross

- linking.” Cross

- linking refers to a phenomenon where polymer chains link with each other during the production of organic compounds. Cross

- linking is problematic in the manufacture of adhesive resins because it can cause poor performance, clarity, and color. The claims also require mixing “following polymerization without first pelletizing the pelletizable polyolefin.” ’163 pat ., col. 8, ll. 35

– 36

. In prior manufacturing processes, the polymer was extruded into pellets and moved to a separate production facility before proceeding to the next step. The se two limitations are the only limitations disputed.
Before trial, the district court granted Equistar’s m otion for summary judgment of no invalidity with respect to the on

- sale bar defense. At trial, the jury determined that Westlake had not infringed the asserted claims and that Westlake had not established that the asserted claims were a nticipated or obvious. After trial, both parties filed judgment as a matter of law (“JMOL”) motions. Equistar also filed a Rule 60(b)(3) motion, conten ding that Westlake’s expert made misrepresentations in his testimony . The district court denied the parties’ JMOLEQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 4

motions and Westlake’s Rule 60(b)(3) motion and entered judgment. Equistar appeals the judgment of no infring ement, and West lake cross

- appeals the judgment of no invalidity. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

D ISCUSSION

I

We first consider th e judgment of noninfringement. I n this respect, Equistar contends that the district court erred in denying its Rule 60(b)(3) mo tion. Federal Rule of Civil Procedure 60(b)(3) provides that the court may relieve a party from a final judgment for “fraud (whether previously called intrinsic or extrinsic), misrepresent ation, or misconduct by an opposing party.”

We review the denial of the Rule 60(b) mo tion for abuse of discretion. Bailey v. Cain , 609 F.3d 763, 767 (5th Cir. 2010). Equist ar argues that the evidence that Westlake’s expert presented to the jury misrepresented Westla ke’s typical production process by falsely stating that a particular production run was representative

. Equistar makes this argument based on documents that Westl ake produced during discovery long before trial. There was no newly discovered evidence. Equistar had all of the documents before it, and cross

- examined the wi tness. Equistar extensively argued to the jury that the production evidence Westlake relied upon was not repr esentative. The jury then assessed credibility. There is no basis for granting a Rule 60(b) motion or for second

guessing the jury. As the district court concluded, “[a]t best, the allegations here amount to inconsistencies or discrepancies in the evidence. There is no evidence of forgery, lies or perjury. ” J.A. 9. The district court did not abuse its discretion in denying Rule 60(b) relief.EQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 5

Equistar alternatively argues that either JMOL or a new trial is warranted because the jury verdict was not supported by substantial evidence. We review the denial of JMOL d e novo

. Olibas v. Barclay , 838 F.3d 442, 448 (5th Cir. 2016). We review the denial of a new trial for abuse of discretion. Id. H ere , the jury’s verdict is suppor ted by substantial evidenc e. The only disputed limitation is whether the accused process “minimizes cross

- linking.” Westlake’s expert testified that Westlake’s production process does not minimize cross

- linking because it exposes its products to higher temperatures and introduces o x ygen, both of which cause cross

- linking. Westlake further provided evidence that rather than minimizing cross

linking during the process, it removes cross

- linking after the process has occurred. This is sufficient evide nce to support a jury verdict that Equistar did not prove non

infringement. Thus, the district court did not err in den ying JMOL and the motion for a new trial.

II
The jury found that Westlake had not proven by clear and convincing evidence that any of the asserted claims

was invalid as anticipated or obvious . Westlake argues that the district court erred in denying its JMOL motion.
Westlake argues that the record established that the asserted claims were antici pated as a matter of law by U.S. Patent No. 5,705,565 , referred to as “Hu ghes .” The parties only dispute whether Hughes discloses the “min imizing cross

- linking” and the “following polymerization” limitation s. Equistar’s witness, Dr. Mirabella, testified at trial that Hughes does not disclose the limita tion of “minimizing cross

- linking” because Hughes only disclosed minimizing cross

- linking with respect to making graft polymers, which are different than adhesive resins. The ’163 patent, in contrast, only claims minimizing cross

linking while making adhesive resins. Dr. MirabellaEQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 6

testified that graft polymers are produced using different chemicals and different processes than adhesive resins. Based on this evidence, a reasonable jury could conclude that Hughes did not disclose “minimizing cross

- linking” when making adhesive resins. As to the “following polymerization” limitation, Dr. Mirabel la testified that Hughes does not disclose mixing a graft polymer and a polyolefin “following polymerization without first pelletizing ” the polyolefin because a person of ordinary skill would un derstand “following polymeriz ation” to require a single, continuous process. Dr. Mirabella testified that Hughes does not disclose a single, contin uous process. Based on this testimony, a reasonable jury could conclude that Hughes does not disclose the “fo llo wing polymerization” limitation. Therefore, the jury verdict that Westlake did not prove anticipation is supported by substantial evidence.
Westlake also argues that the asserted claims were obvious in view of Hughes or U.S. Patent No. 5,969,050, refer red to as “ Vandevijver. ” Both Hughes and Vandevij v er disclose minimizing cross

- linking with r espect to making graft polymers. First, Westlake argues that this disclosure renders obvious “minimizing cross

linking” while manufacturing adhesive resins. However, as noted earlier, Dr. Mirabella testified that making a graft polymer uses different chemicals and different processing conditions than making an adhesive resin. Second, Equistar’s experts testified that it would be nonobvious to introduce graft p olymers into the contin uous manufacturing process because graft polymers react differently than other additives

. In particular, the experts testifie d that there were concerns that introducing a graft polymer into a continuous process would cause contam ination. Based on this testimony, substantial evidence supports the jury verdict that Westlake did not prove that the asserted claims would have been obvious.EQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 7

In sum , we conclude that the district court did not err in denying Westlake’s motion for judg ment of invalidity as a matter of law as to anticipation and obviousness

. III
Westlake argues that the district court erred in gran ting summary judgment of no invalidity based on the on

sale bar, and that, instead the district court should have granted summar y judgment of invalidity. 1 Equistar manufactured an adhesive resin, labeled PX3236, which could be made using either a conventional process or the patented process. It is undisputed that Equistar produced 345,000 pounds of PX3236 using the patented process prior to the critical date. However, Equistar did not fill orders with PX323 6 until after the critical date, and t here is no contention here th at Equistar actually sold any product made by the patented

process before the critical date.
Mere stockpiling of a product made by the patented

process is not enough to trigger the on

- sale bar. Medicines Co. v. Hospira, Inc. , 827 F.3d 1363, 1377 (Fed. Cir. 2016) (en banc). Yet an offer before the critical date to sell a product made by the patented method can create an on

sale bar. Scaltech, Inc. v. Retec/Tetra LLC , 269 F.3d 1321, 1328 (Fed. Cir. 2001); D.L. Auld Co. v. Chroma Graphics Corp. , 714 F.2d 1144, 1148 (Fed. Cir. 1983). The primary issue is whether Equistar made an invalidating offer to sell a product made by the patented method before the critical date. Westlake also contends that under our decision in Plumtree Software, Inc. v. Datamize, LLC , 473 F.3d 1152, 1162 (Fed. Cir. 2006), Equistar “performed the

1 The ’163 patent was filed on July 2, 2003, so the
pre -A merica Invents Act version of 35 U.S.C. § 102 a pplies.EQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 8

patented method for a promise of future compens ation,” i.e., to enable Equistar to offer products made by the patented method before the critical date.

We conclude that the district court erred in granting summary judgment because the record is not sufficient to grant summary judgment for either side. Contrary to both parties’ positions, it is readily apparent that there are disputed issues of fact. The record does not disclose the exact nature of the alleged ly invalidating offers or the circumstances surrounding the offers , and we think that in this c ase the on

- sale bar issue is best addressed on a full record

. On remand, the record should be devel oped address ing the following questions:

1. What were the offers for sale of the product, and when were they made?

2. Did the offers require the product to be made by the patented method?

3. If the offers were accepted, was Equistar obligated to supply product made by the patented method?

4. Before the critical date, did Equistar decide to fill orders with the patented method ?

5. Before the critical date, could orders be filled with products produced by the conventional process or was only product produced by the patented method available?

6. Was the product produced before the critical date by the patented method made to enable t he p atentee to make of fers before the critical date?
In identifying these questions, we express no view as to the ultimate resolution of the merits, or even whether the answer to each question is material

. The case is remanded for further proceedings, which could includeEQUISTAR CHEMICALS , LP v. WESTLAKE CHEMICAL
CORPORATION 9

consideration of a renewed motion for summary judgment or a trial as appropriate.

C ONCLUSION We affirm the judgment of noninfringement and the judgment of no invalidity based on anticipation and obviousness. We vacate the grant of summary judgment as to the on

- sale bar defense, and remand for further proceedings.

AFFIRMED

- IN

- PART, VACATED

- IN

- PART, AND REMANDED

C OSTS

No costs.