In Grape Technology Group, Inc. v. Jingle Networks, Inc., C.A. No. 08-408-GMS (D. Del. January 9, 2012), following a jury verdict of no infringement and validity, Judge Robinson recently decided the parties’ post-trial motions. When denying defendant’s JMOL motion as to the validity of the patents-in-suit, Judge Robinson rejected defendant’s argument that the asserted claims of one patent-in-suit were invalid because it would have been obvious to one of skill in the art to combine two prior art references. Id. at 17. Because defendant failed to present any evidence regarding the level of skill of the art, the court was unable to determine said level of skill, nor was the jury verdict against the weight of evidence. Id. at 19-20.
Jingle had argued that “its expert, Dr. Forys referenced a person ‘in the industry’ when discussing the prior art, and that that testimony is sufficient evidence to establish the level of ordinary skill in the art.” Id. at 18, n.11. Judge Robinson disagreed. “Dr. Forys’s brief, and unsupported, ‘reference’ of a person in the industry hardly creates any evidence that the ordinary level of skill in the art is ‘an individual working in the telecommunications industry,’ as [defendant] claims.” Id. Judge Robinson also pointed out that the expert’s report “inconsistently defined the level of skill in the art as a ‘B.S. degree in Electrical or Computer Engineering or equivalent training as well as 3-5 years of experience in the fields of call center architecture and their components especially involving directory assistance as well as marketing and advertising.’” Id.