The opinion of the court was delivered by: Brown, C.J.
This matter comes before the Court upon the renewed motion for judgment as a matter of law of Plaintiffs Line Rothman and Glamourmom (collectively, "Plaintiff") that Defendant Leading Lady's ("Defendant") claimed prior invention developed by Haidee Johnstone is not prior art and cannot anticipate the claims of Plaintiff's 6,855,029 patent ("'029 patent")(docket # 319). The Court has decided the motions without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will deny Plaintiff's motion.
Plaintiff filed a Complaint on October 7, 2005, alleging among other things that garments produced by Defendant infringed Plaintiff's ,029 patent The complaint was amended on October 18, 2005, May 24, 2006, and March 23, 2007, to add certain Defendants and make certain corrections with respect to the names of others. In Defendant's answer to the third complaint, it alleged that the '029 patent was invalid under 35 U.S.C. Section 102. Defendant asserted that Haidee Johnstone, one of its employees, had developed an identical garment to the '029 patent known as Style No. 460 ("the 460 garment") in 1998. After a jury trial, the jury concluded that the 460 garment did indeed anticipate the '029 patent. On November 19, 2007, Plaintiff filed a renewed motion for judgment as a matter of law pursuant to Rule 50(b). Plaintiff argues that Defendants failed to produce legally sufficient evidence for a reasonable jury to have found that Ms. Johnstone's alleged prior art anticipated the '029 patent. As such, Plaintiff asserts that it is entitled to judgment as a matter of law.
II. Evidence of Prior Art
Ms. Johnstone testified that she developed the 460 garment in 1998, after designing two other garments, based upon a trend she observed involved garments consisting of tank-tops with built-in shelf bras. Johnstone Tr., 33:5-8, Oct. 25 p.m. According to Johnstone, she first designed a sports bra, known as style no. D338. Id. at 34:19. The D338 is a sports bra containing a shelf bra. Ms. Johnstone testified that the D338 garment "has an elastic stretch band that goes under the bust. It has fasteners . . . and a strap. In this instance the sling is a piece of elastic, but it still serves to do the same function as [the sling in the accused garment]. It anchors the strap to the bra." Id. at 32:8-13.
Johnstone testified that she successfully sold the D338 to Target in 1997.Id. at 36:21. According to Johnstone, the D338 was digitized into the Leading Lady's "Gerber" computer system on February 2, 1998. Johnstone explained that because of the time involved in digitizing a garment, Leading Lady does not digitize the garments until they are ready for production. Johnstone Tr., 20:7-19, Oct 29 p.m. A pattern of the D338 from the Gerber system was entered into evidence, displaying the date of February 2, 1998. See Decl. of Christopher E. Torkelson, Exhibit 9.
Ms. Johnstone also testified that she assigned the D338 garment a "pattern number," which she noted in her reference book that she refers to as the "red book." Johnstone Transcript., 18:16-19-6, Oct. 29 a.m. According to Ms. Johnstone, she assigns all the design patterns a pattern number and notes the pattern number in her redbook. Ms. Johnstone testified that she has carried out this practice for approximately twenty years. The redbook was entered into evidence. Id. at 12:13-24, Ms. Johnstone next designed garment 438, which she testified was successfully sold to JC Penny in 1998 and sold in the JC Penny catalogue in the spring of 1999. Johnstone Tr., 37:2-19; 45:6-7., Oct. 25 p.m., Defendant maintains that the 438 garment contains the same type of sling featured in the 460 garment. See Def. Br at 6. As the trial exhibit indicated to the jury, the pattern for garment 438 was digitized on October 7, 1998. See Decl. of Christopher E. Torkelson, Exhibit 9.
Within months of selling the 438 garment to JC Penny, in the spring of 1998, Johnstone testified that she attempted to sell JC Penny the 460 garment. Johnstone Tr., 55:2-8, Oct. 25 p.m. According to Ms. Johnstone, in 2005, a fire destroyed all samples of the 460 garment. Johnstone Tr., Oct. 25 p.m., 53:6-15. However, she testified further that the 460 garment is "identical" to the accused D219 garment. According to Johnstone, the D219 "has remained unchanged since the initial concept [of the 460 garment]." Johnstone Tr., 52:22-25. Defendant also submitted to the jury a memo that Ms. Johnstone testified listed different styles that she was working on as of November 5, 1998. The memo listed Garment 460 and described it as "camisole nursing -- not in production." See Decl. of Christopher E. Torkelson, Exhibit 33. Johnstone testified that she used the word "camisole" interchangeably with the word tank top. Johnstone Tr., 59:24-25, Oct. 29, p.m. Another memo was also entered into evidence with a heading of "New Leading Lady Products." See Decl. of Christopher E. Torkelson, Exhibit 36. The memo described the 460 as a "full figure camisole nursing bra," and although it was not dated, Ms. Johnstone was certain it was from 1998 because it said "new leading lady products" and contained garments, such as the 460 garment that were all new as of that time. Johnstone Tr., Oct. 29, p.m., 63.
Ms. Johnstone testified that her attempts to sell the 460 garment to JC Penny in 1998 were unsuccessful, and as a result, she attempted to sell the garment to the store Dan Howard in 2000. Johnstone Tr., Oct. 25, p.m., 55-56. Johnstone elaborated that she attempted to sell the garment to Joseph Kirsch of Dan Howard "at least a couple of times." She felt that the 460 garment was a "great" product, which inspired her to "keep trying" to sell it. Id. at 57:13-15. She testified further about a specific visit she made to Dan Howard on July 11, 2000, where she met with a new buyer by the name of Marilyn Clopton. She also identified the plane ticket in her name that was purchased for her trip to visit Dan Howard in Chicago. Johnstone Tr., Oct. 29, p.m., 67-68. The jury was presented with a list of various samples, dated July 5, 2000, that according to Johnstone, needed to be completed for the July 11 meeting with Dan Howard. Id. at 71. Ms. Johnstone testified that item number four on the list, which was assigned a pattern number of 1345, referenced the 460 garment. Id. at 74. Ms. Johnstone again testified that the 460 garment presented to Miss. Clopton at the meeting has "remained unchanged since 1998" and is the same as the accused D219 garment. Id. at 77.
Ms. Johnstone testified that after her being unsuccessful in her attempts to sell the 460 garment to Dan Howard, she then attempted to then sell the garment to Target. Johnstone testified at length about her courtship of Target. She explained that she was initially unsuccessful when she attempted to sell Target the garment in 2001, but was later able to win over a new buyer for Target in 2002. Johnstone Tr., Oct. 29, p.m., 82-89.
Defendant also entered into evidence a "provisional patent application" that was filed in October, 2003 by Defendant's then patent attorney on behalf of Ms. Johnstone. Ms. Johnstone testified that figure 13 in the application was a drawing of her 460 garment, that Defendant's attorney rendered based on a sample of the 460 that Ms. Johnstone provided to him. Johnstone Id. at 109.
In addition to hearing from Ms. Johnstone, the jury also heard from Ludmila CernyBradik, Defendant's sample maker. Ms. Cerny-Bradik testified that she constructed the sample for the 460 garment in 1998, based upon the D338 and 438 garments. Cerny-Bradik Tr., Oct. 30, a.m., 39-41. She also testified that the July 5, 2000 memo put together by Ms. Johnstone was a "working schedule" for her to use in preparing the garments for the July 11, 2000 meeting with Dan Howard. Id. at 47-48. Ms. Cerny-Bradik testified further that she constructed samples of the 460 garment for that meeting and identified pattern no. 1345 on the memo as the pattern number of the 460 garment. Id. at 48-50. She confirmed that a fire destroyed the 460 garment, and finally testified that the 460 garment was the "exact same thing" as the accused D-219 garment, which had not changed since 1998. Id. at 55-58.
Defendant's president, Mark Corrado testified that he has been "very familiar" with the 460 garment since 1998 and has attended several meetings with Ms. Johnstone where he attempted to sell the garment. He specifically recalled showing the garment to former Dan Howard buyer Joe Kirsch before their July, 2000 meeting with Dan Howard, in part, because Mr. Kirsch did not like the garment. Mr. Corrado testified that samples of the 460 were brought to the July 11, 2000 meeting, and further that the 460 sample is "the exact same garment" as the accused D219. Mr. Corrado also corroborated Ms. Johnstone's testimony ...