Counsel’s Gratuitous Arguments Concerning Copying and Burden of Proof Warrant New Trial

The court "reluctantly" granted defendant's motion for a new trial after a jury verdict of validity and infringement because of plaintiff's improper arguments regarding copying and the burden of proof. "[D]uring a lengthy sidebar, the parties agreed to take the issue of copying out of the case. . . . In closing, [plaintiff's] counsel reminded the jury that [plaintiff's former employee/defendant's executive] saw [plaintiff's] Infinity System press release and sent it around at [defendant]; [defendant] acquired an Infinity communicating system and tore it down; and [plaintiff's former employee] took documents from [plaintiff]. Rather than relate this evidence to willful blindness, as forecast above, [plaintiff's] counsel instead related it to infringement. . . . [Plaintiff's] counsel also stated during closing that the clear and convincing standard for invalidity is the 'exact same standard in this State [used] ... to terminate someone's parental rights, meaning that that level of proof is required to take away someone's kid.'. . . The question presented is whether, in [plaintiff's] closing argument, counsel simply approached the line drawn by the court (on the issue of copying) or by the traditional protocol practiced in this court (in describing the burden of proof), or crossed it? Despite the curative instruction, the trial record was complex enough and, more significantly, balanced enough to make any gratuitous argument sufficient to tip the balance for the wrong reason."

Carrier Corporation v. Goodman Global Inc. et al, 1-12-cv-00930 (DED February 22, 2016, Order) (Robinson, J.)