Instruction That Jury “Should” Consider Objective Indicia Not Erroneous

Following a jury verdict of invalidity, the court denied plaintiff's motion for a new trial because the jury instructions regarding obviousness were proper. "⁠[T]he Court instructed the jury that it 'should' consider objective indicia of nonobviousness in making its obviousness determinations. [Plaintiff] contends that the jury should have been instructed that it 'must' consider objective indicia of non-obviousness because such considerations are mandatory. . . . [Plaintiff's] argument . . . has more traction in the context of statutes and contracts: words written by lawyers, argued over by lawyers, and interpreted by lawyers. Here, however, in the context of jury instructions, 'should' sufficiently conveyed to the members of the jury (none of whom were lawyers) the purportedly mandatory nature of their consideration of objective indicia of nonobviousness. . . . Even if it was error for the Court to use 'should' rather than 'must,' such error was harmless -- it neither misled the jury nor had a probable effect on the verdict."

Bombardier Recreational Products, Inc et al v. Arctic Cat, Inc et al, 0-12-cv-02706 (MND August 7, 2018, Order) (Tunheim, USDJ)