NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EQUISTAR CHEMICALS, LP, MSI TECHNOLOGY 

LLC,

Plaintiffs-Appellants

v.

WESTLAKE CHEMICAL CORPORATION,

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-KNM, 

Magistrate Judge K. Nicole Mitchell.

______________________ 

Decided: July 3, 2018 

______________________ 

 MICHAEL A. BITTNER, Winston & Strawn LLP, Dallas, 

TX, argued for plaintiffs-appellants. Also represented by 

THOMAS M. MELSHEIMER; ROBERT P. COURTNEY, CONRAD 

GOSEN, Fish & Richardson P.C., Minneapolis, MN.

 DARYL JOSEFFER, King & Spalding LLP, Washington, 

DC, argued for defendant-cross-appellant. Also represented by JOHN HANSON BARR, JR., JEFFREY L. OLDHAM,
 EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL 

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RICHARD WHITELEY, STACIANNE WILSON, Bracewell LLP, 

Houston, TX.

______________________ 

Before DYK, MOORE, and O’MALLEY, Circuit Judges.

DYK, 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. 

BACKGROUND

Adhesive resins are used to bind different layers of 

polymers together. In food packaging, for example, adhesive resins bind a layer of ethylene vinyl alcohol, which 

serves as an oxygen barrier, between two layers of foodsafe 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 graft 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 invalidity counterclaims. Claim 1, which is representative,

reads: 

1. A method for producing improved polyolefinbased adhesive resin, comprising: 

a. polymerizing a monomer composition of at 

least one olefin to a pelletizable polyolefin; 
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b. mixing with shear mixing, while minimizing 

cross-linking, at least 50% by weight based on 

the polyolefin-based adhesive resin of the 

polymerization product following polymerization without first pelletizing the pelletizable 

polyolefin with at least one graft polymer or 

copolymer in a heated mixing device at a temperature above the melting point of the components; and 

c. recovering the resulting polyolefin-based adhesive resin.

’163 pat., col. 8, ll. 28–40. 

Of relevance to this dispute, all the asserted claims 

require that the accused process “minimize 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. These two limitations 

are the only limitations disputed. 

Before trial, the district court granted Equistar’s motion 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 anticipated or obvious. After trial, both 

parties filed judgment as a matter of law (“JMOL”) motions. Equistar also filed a Rule 60(b)(3) motion, contending that Westlake’s expert made misrepresentations in 

his testimony. The district court denied the parties’ JMOL 
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motions and Westlake’s Rule 60(b)(3) motion and entered 

judgment. Equistar appeals the judgment of no infringement, and Westlake cross-appeals the judgment of no 

invalidity. We have jurisdiction pursuant to 28 U.S.C. § 

1295(a)(1). 

DISCUSSION

I 

We first consider the judgment of noninfringement. In 

this respect, Equistar contends that the district court 

erred in denying its Rule 60(b)(3) motion. 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), misrepresentation, or misconduct by an opposing party.”

We review the denial of the Rule 60(b) motion for 

abuse of discretion. Bailey v. Cain, 609 F.3d 763, 767 (5th 

Cir. 2010). Equistar argues that the evidence that 

Westlake’s expert presented to the jury misrepresented 

Westlake’s typical production process by falsely stating 

that a particular production run was representative. 

Equistar makes this argument based on documents that 

Westlake produced during discovery long before trial. 

There was no newly discovered evidence. Equistar had all 

of the documents before it, and cross-examined the witness. Equistar extensively argued to the jury that the 

production evidence Westlake relied upon was not representative. The jury then assessed credibility. There is no 

basis for granting a Rule 60(b) motion or for secondguessing 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. 
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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 de 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. Here, the jury’s verdict is supported by substantial evidence. 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 oxygen, both of which cause cross-linking. Westlake further 

provided evidence that rather than minimizing crosslinking during the process, it removes cross-linking after 

the process has occurred. This is sufficient evidence to 

support a jury verdict that Equistar did not prove noninfringement. Thus, the district court did not err in denying 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 anticipated as a matter of law by 

U.S. Patent No. 5,705,565, referred to as “Hughes.” The 

parties only dispute whether Hughes discloses the “minimizing cross-linking” and the “following polymerization” 

limitations. Equistar’s witness, Dr. Mirabella, testified at 

trial that Hughes does not disclose the limitation 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 crosslinking while making adhesive resins. Dr. Mirabella 
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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. 

Mirabella 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 understand “following polymerization” to require a single, continuous process. Dr. Mirabella 

testified that Hughes does not disclose a single, continuous process. Based on this testimony, a reasonable jury 

could conclude that Hughes does not disclose the “following 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, 

referred to as “Vandevijver.” Both Hughes and 

Vandevijver disclose minimizing cross-linking with respect to making graft polymers. First, Westlake argues 

that this disclosure renders obvious “minimizing crosslinking” 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 polymers into the continuous manufacturing process because graft polymers react 

differently than other additives. In particular, the experts

testified that there were concerns that introducing a graft 

polymer into a continuous process would cause contamination. Based on this testimony, substantial evidence 

supports the jury verdict that Westlake did not prove that 

the asserted claims would have been obvious. 
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In sum, we conclude that the district court did not err 

in denying Westlake’s motion for judgment of invalidity 

as a matter of law as to anticipation and obviousness. 

III

Westlake argues that the district court erred in granting summary judgment of no invalidity based on the onsale bar, and that, instead the district court should have 

granted summary 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 PX3236 until after the 

critical date, and there is no contention here that 

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 onsale 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-America Invents Act version of 35 U.S.C. § 102 applies. 
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patented method for a promise of future compensation,” 

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 allegedly invalidating offers or the 

circumstances surrounding the offers, and we think that 

in this case the on-sale bar issue is best addressed on a 

full record. On remand, the record should be developed 

addressing 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 the patentee to make offers 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 include 
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consideration of a renewed motion for summary judgment 

or a trial as appropriate. 

CONCLUSION

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

COSTS

No costs.