Lubby Holdings LLC v. Chung

Case: 19-2286 Document: 52 Page: 1 Filed: 09/01/2021

United States Court of Appeals
for the Federal Circuit
______________________

LUBBY HOLDINGS LLC, VAPOROUS
TECHNOLOGIES, INC.,
Plaintiffs-Appellees

v.

HENRY CHUNG,
Defendant-Appellant
______________________

2019-2286
______________________

Appeal from the United States District Court for the
Central District of California in No. 2:18-cv-00715-RGK-
JC, Judge R. Gary Klausner.
______________________

Decided: September 1, 2021
______________________

DANIEL C. CALLAWAY, Farella Braun & Martel LLP,
San Francisco, CA, argued for plaintiffs-appellees. Also
represented by NADIA ARID, ERIK C. OLSON.

WILLIAM B. CHADWICK, Kimball Anderson, Salt Lake
City, UT, argued for defendant-appellant. Also repre-
sented by ROBERT AYCOCK; JOSEPH PIA, Pia Hoyt, Salt Lake
City, UT; JEN-FENG LEE, LT Pacific Law Group LLP, City
of Industry, CA.
______________________
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2 LUBBY HOLDINGS LLC v. CHUNG

Before NEWMAN, DYK, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Opinion concurring in part and dissenting in part filed by
Circuit Judge NEWMAN.
DYK, Circuit Judge.
Henry Chung appeals a judgment of the United States
District Court for the Central District of California, finding
that Mr. Chung was liable for infringing U.S. Patent No.
9,750,284 (the “’284 patent”) and awarding damages of
$863,936.10. Although we conclude that there was evi-
dence to support the jury’s verdict that Mr. Chung directly
infringed the ’284 patent, the district court erred in award-
ing damages for the sales of infringing products prior to the
commencement of this action, which is the date Mr. Chung
received actual notice of the ’284 patent under 35 U.S.C.
§ 287. As a result, we affirm in part, reverse in part, and
remand for a new trial to determine the number of infring-
ing products sold after the commencement of this action
and for the determination of a reasonable royalty rate for
the sale of these units.
BACKGROUND
Lubby Holdings, LLC is the owner of the ’284 patent,
titled “Personal Vaporizer.” “Personal vaporizers are
handheld devices that vaporize a vaporizing medium such
as a liquid solution or a wax.” ’284 patent col. 1 ll. 17–18.
The ’284 patent relates to personal vaporizers that “will re-
sist leaking, particularly during periods of nonuse.” Id.
col 1 l. 65. Vaporous Technologies, Inc. is a nonexclusive
licensee of the ’284 patent. On January 26, 2018, Lubby
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LUBBY HOLDINGS LLC v. CHUNG 3

Holdings and Vaporous Technologies (collectively,
“Lubby”) sued Mr. Chung for infringement. 1
Beginning on May 7, 2019, the district court held a
three-day jury trial. Each party presented evidence. Dur-
ing trial, Mr. Chung moved for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a) as to damages,
arguing that Lubby did not meet its burden to prove that it
complied with 35 U.S.C. § 287’s marking requirement. The
court took the motion under submission but did not issue a
ruling. The jury ultimately returned a verdict finding
Mr. Chung liable for direct infringement of the ’284 patent
and awarding Lubby $863,936.10 in reasonable royalty
damages. After trial, Mr. Chung renewed his motion for
judgment as a matter of law under Rule 50(b). In a brief
order, the district court denied Mr. Chung’s renewed mo-
tion, finding that “there was sufficient evidence to support
the jury’s verdict at the close of trial.” J.A. 3.
Mr. Chung also moved for a new trial under Rule 59(a).
In his Rule 59(a) motion, Mr. Chung argued that the ver-
dict of liability was against the clear weight of the evidence.
The district court denied the motion with minimal expla-
nation.
Mr. Chung appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(1).

1 In its complaint, Lubby also sued DeepVapes Inc.,
which did not appear in this action. The judgment purports
to award relief against DeepVapes as well as Mr. Chung.
DeepVapes did not appeal. We do not consider the status
of the judgment against DeepVapes. Additionally, Lubby
sued Ming Chen, an individual, whom the district court
dismissed at trial.
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4 LUBBY HOLDINGS LLC v. CHUNG

DISCUSSION
I
Mr. Chung first argues that there was no evidence in
the trial record to support the jury’s verdict that he directly
infringed the ’284 patent. Because Mr. Chung did not
properly raise the issue of his direct infringement liability
in his Rule 50(a) motion and raised it only in his Rule 59(a)
motion, we evaluate this issue under the substantially con-
strained abuse-of-discretion standard of review applicable
to Rule 59(a) motions. See Desrosiers v. Flight Int’l of Fla.
Inc., 156 F.3d 952, 956–57 (9th Cir. 1998). “[W]here the
basis of a Rule 59 ruling is that the verdict is not against
the weight of the evidence,” we will reverse the jury’s find-
ing of infringement “only where there is an absolute ab-
sence of evidence to support the jury’s verdict.” Kode v.
Carlson, 596 F.3d 608, 612 (9th Cir. 2010).
There is evidence to support the jury’s verdict finding
that Mr. Chung was liable for direct infringement of the
’284 patent under 35 U.S.C. § 271(a). Lubby presented ev-
idence to establish that Mr. Chung made, offered to sell,
and sold personal vaporizer devices accused of infringing
the ’284 patent. See, e.g., J.A. 762:23–763:7 (Mr. Chung
testifying that he designed the accused products); id.
at 769:24–770:13 (Mr. Chung testifying that he sold the ac-
cused products through his company); id. at 851:13–15
(Mr. Chung testifying that he made the decision to sell the
accused products through his company); id. at 851:16–17
(Mr. Chung again testifying that he designed the accused
products).
Mr. Chung argues that he cannot be liable for infringe-
ment based on acts that he took on behalf of his company,
Esquire Distribution Inc., unless Lubby established that it
was appropriate to pierce the corporate veil, and he argues
that Lubby presented no evidence to support piercing the
corporate veil. But that is not the standard. Corporate
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LUBBY HOLDINGS LLC v. CHUNG 5

officers can be personally liable for their own acts of in-
fringement, even if those acts were committed in their cor-
porate capacity. In Wordtech Systems, Inc. v. Integrated
Networks Solutions, Inc., 609 F.3d 1308 (Fed. Cir. 2010),
we stated that “the ‘corporate veil’ shields a company’s of-
ficers from personal liability for direct infringement that
the officers commit in the name of the corporation, unless
the corporation is the officers’ ‘alter ego.’” Id. at 1313. But,
as we emphasized in Global Traffic Technologies LLC v.
Morgan, 620 F. App’x 895 (Fed. Cir. 2015), “[w]e do not be-
lieve this statement represents a departure from the tradi-
tional rule that a person is personally liable for his own
tortious actions, even if committed as a corporate officer.”
Id. at 908 n.6 (citing United States v. Trek Leather, Inc.,
767 F.3d 1288, 1299 (Fed. Cir. 2014)). “Instead, we inter-
pret Wordtech as reinforcing the rule that a corporate of-
ficer—or perhaps only a corporate owner—cannot be found
derivatively liable for the corporation’s infringement with-
out piercing the corporate veil.” Id. (internal citation omit-
ted); see also Astronet Techs., Inc. v. BAE Sys., Inc., 802
F.3d 1271, 1279 (Fed. Cir. 2015) (explaining that, while
piercing the corporate veil is appropriate for questions of
derivative liability, “veil-piercing standards do not govern
the separate issue of direct liability for one’s own wrongful
acts, as the governing law defines those wrongs”). The fact
that Mr. Chung may have acted on behalf of his corporation
does not excuse him from individual liability. Given the
evidence that Mr. Chung sold the allegedly infringing prod-
ucts and the deferential standard of review, we must up-
hold the jury’s verdict that Mr. Chung is personally liable
for direct infringement of the ’284 patent.
II
Mr. Chung next argues that the record lacks substan-
tial evidence to support the jury’s damages verdict. He con-
tends that the jury’s “damages verdict cannot stand
because there is no evidence that Lubby complied with the
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6 LUBBY HOLDINGS LLC v. CHUNG

marking and notice requirements under 35 U.S.C. § 287.”
Appellant’s Br. 49. 2 Mr. Chung properly preserved and
raised this issue in his Rule 50 motions. A denial of a mo-
tion for judgment as a matter of law is reviewed de novo.
Greisen v. Hanken, 925 F.3d 1097, 1107 (9th Cir. 2019).
“Pursuant to 35 U.S.C. § 287(a), a patentee who makes
or sells a patented article must mark his articles or notify
infringers of his patent in order to recover damages.” Arc-
tic Cat Inc. v. Bombardier Recreational Prods. Inc.,
876 F.3d 1350, 1365 (Fed. Cir. 2017). “If a patentee who
makes, sells, offers for sale, or imports his patented articles
has not ‘given notice of his right’ by marking his articles
pursuant to the marking statute, he is not entitled to dam-
ages before the date of actual notice.” Id. at 1366 (quoting
Dunlap v. Schofield, 152 U.S. 244, 248 (1894)).
Lubby argues that Mr. Chung did not meet his initial
burden of production to point to products that he believed

2 35 U.S.C. § 287(a) provides, in pertinent part:
Patentees, and persons making, offering for sale, or
selling within the United States any patented arti-
cle for or under them, or importing any patented
article into the United States, may give notice to
the public that the same is patented, either by fix-
ing thereon the word “patent” or the abbreviation
“pat.”, together with the number of the patent . . . .
In the event of failure so to mark, no damages shall
be recovered by the patentee in any action for in-
fringement, except on proof that the infringer was
notified of the infringement and continued to in-
fringe thereafter, in which event damages may be
recovered only for infringement occurring after
such notice. Filing of an action for infringement
shall constitute such notice.
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LUBBY HOLDINGS LLC v. CHUNG 7

were sold unmarked. “The patentee bears the burden of
pleading and proving he complied with § 287(a)’s marking
requirement.” Id. “The burden of proving compliance with
marking is and at all times remains on the patentee.” Id.
at 1367. However, “an alleged infringer who challenges the
patentee’s compliance with § 287 bears an initial burden of
production to articulate the products it believes are un-
marked ‘patented articles’ subject to § 287.” Id. at 1368.
We have emphasized that “this is a low bar.” Id. As we
have explained, “[t]he alleged infringer need only put the
patentee on notice that he or his authorized licensees sold
specific unmarked products which the alleged infringer be-
lieves practice the patent. The alleged infringer’s burden
is a burden of production, not one of persuasion or proof.”
Id. But “[o]nce the alleged infringer meets its burden of
production, . . . the patentee bears the burden to prove the
products identified do not practice the patented invention.”
Id.
Mr. Chung met his burden of production under Arctic
Cat “to articulate the products [he] believes are unmarked
‘patented articles’ subject to § 287,” id. Lubby did not dis-
close its damages computation as required by Federal Rule
of Civil Procedure 26(a)(1)(A)(iii) until May 6, 2019, the day
prior to trial. That same day, Mr. Chung objected to
Lubby’s damages computation, including raising the issue
of whether Lubby’s products were properly marked as re-
quired by 35 U.S.C. § 287. In his objection, Mr. Chung spe-
cifically pointed to the J-Pen Starter Kit product as listed
on Lubby’s website, which did not include a patent number.
Mr. Chung met his initial burden of production in his ob-
jection by pointing to Lubby’s J-Pen Starter Kit product,
clearing Arctic Cat’s “low bar” to put Lubby “on notice that
[it] . . . sold specific unmarked products which [Mr. Chung]
believes practice the patent.” Id. After Mr. Chung’s objec-
tion, Lubby “b[ore] the burden to prove the products iden-
tified do not practice the patented invention.” Id. Lubby
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8 LUBBY HOLDINGS LLC v. CHUNG

presented no evidence that the identified product did not
practice the patent or that it marked the products it actu-
ally sold and thus failed to establish that it marked the
products as required by § 287. It can recover damages only
for the period that it provided actual notice to Mr. Chung.
Lubby established only that Mr. Chung was actually
notified of infringement of the patent as required by § 287
as of the filing of the lawsuit on January 26, 2018. See 35
U.S.C. § 287(a) (“Filing of an action for infringement shall
constitute . . . notice.”).
In response, Lubby argues that Mr. Chung had actual
notice prior to the filing of the lawsuit because Mr. Chung
admitted in his answer “that he had notice of the issuance
of the ’284 patent.” Appellee’s Br. 57. Mr. Chung’s admis-
sion that he had notice that the ’284 patent issued does not
equate to actual notice under § 287. “For purposes of sec-
tion 287(a), notice must be of ‘the infringement,’ not merely
notice of the patent’s existence or ownership.” Amsted In-
dus. Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 187
(Fed. Cir. 1994).
Lubby also argues that, because Mr. Chung was on no-
tice of the ’284 patent and of his own infringing activity be-
fore the filing of the lawsuit, it is entitled to damages from
earlier sales. As we have long explained, “the actual notice
requirement of § 287(a) is satisfied when the recipient is
informed of the identity of the patent and the activity that
is believed to be an infringement, accompanied by a pro-
posal to abate the infringement, whether by license or oth-
erwise.” SRI Int’l, Inc. v. Advanced Tech. Labs., Inc., 127
F.3d 1462, 1470 (Fed. Cir. 1997). “It is irrelevant [under
§ 287] . . . whether the defendant knew of the patent or
knew of his own infringement. The correct approach to de-
termining notice under [§] 287 must focus on the action of
the patentee, not the knowledge or understanding of the
infringer.” Amsted, 24 F.3d at 187.
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LUBBY HOLDINGS LLC v. CHUNG 9

Lubby does not point to any evidence that it notified
Mr. Chung of “[an] activity that is believed to be an in-
fringement” before the filing of the lawsuit. SRI, 127 F.3d
at 1462. Lubby argues that its witnesses testified that, be-
fore the patent issued, (a) Mr. Chung “signed nondisclosure
agreements of July and October 2015,” Appellee’s Br. 57;
(b) “the agreements pertained to the underlying technology
in Lubby’s December 2014 patent application,” id.
at 57–58; and (c) at that time, J. Christian Rado, the owner
of Lubby Holdings and CEO and president of Vaporous,
“told [Mr.] Chung that he could not use the technology in
the ’284 patent,” id. at 58. Lubby also argues that it pre-
sented other evidence that established that Mr. Chung sold
infringing units after the patent issued. The cited testi-
mony and evidence do not show that Lubby (through Mr.
Rado or otherwise) provided Mr. Chung “[an] affirmative
communication of a specific charge of infringement by a
specific accused product or device.” Arctic Cat, 950 F.3d
at 864 (emphases added) (quoting Amsted, 24 F.3d at 187).
Damages thus can only be awarded for infringing units sold
after the filing of the lawsuit. The district court erred in
not entering a judgment as a matter of law that Mr. Chung
was not liable for damages prior to the filing of the lawsuit.
Without citing to any evidence presented at trial,
Mr. Chung argues that, following the filing of the lawsuit,
there is only evidence that he sold infringing products for
seven days, which totaled to 408 units. While that may be
true, the only evidence of infringing sales presented at trial
were two sales summaries, which listed cumulative sales
over two time periods: (1) March 1, 2016, through Febru-
ary 1, 2018; and (2) September 6, 2017, through February
1, 2018. Both of these summaries include sales for the pe-
riod prior to the filing of the lawsuit and do not break out
sales in a way that establishes the number of sales that
occurred for the period following the filing of the lawsuit.
We thus remand for a new trial to determine the number
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10 LUBBY HOLDINGS LLC v. CHUNG

of sales made by Mr. Chung following the filing of the com-
plaint and the damages award appropriate for Mr. Chung’s
sale of these infringing units. 3
CONCLUSION
In sum, we affirm the district court’s denial of
Mr. Chung’s Rule 59(a) motion concerning the jury’s ver-
dict that Mr. Chung directly infringed the ’284 patent, re-
verse the district court’s denial of Mr. Chung’s Rule 50(b)
motion for the units sold prior to the filing of the complaint,
and remand for a new trial to determine the number of
sales made by Mr. Chung following the filing of the com-
plaint and the amount of a reasonable royalty associated
for these units. 4
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
COSTS
No costs.

3 Mr. Chung also argues that the damages award in-
cluded sales made prior to the issuance of the ’284 patent.
We have no need to address this argument given our hold-
ing that damages are unavailable with respect to sales be-
fore the filing of the suit, and the filing of the suit occurred
after patent issuance.
4 Given the reversal and the likelihood that the roy-
alty computation in any new trial will be different, we do
not address Mr. Chung’s objection to the previous royalty
computation.
Case: 19-2286 Document: 52 Page: 11 Filed: 09/01/2021

United States Court of Appeals
for the Federal Circuit
______________________

LUBBY HOLDINGS LLC, VAPOROUS
TECHNOLOGIES, INC.,
Plaintiffs-Appellees

v.

HENRY CHUNG,
Defendant-Appellant
______________________

2019-2286
______________________

Appeal from the United States District Court for the
Central District of California in No. 2:18-cv-00715-RGK-
JC, Judge R. Gary Klausner.
______________________

NEWMAN, Circuit Judge, concurring in part, dissenting in
part.
The jury found that U.S. Patent No. 9,750,284 (“the
’284 patent”) is valid and is infringed by defendant Henry
Chung; the jury assessed damages. I join the court’s affir-
mance of the verdict of infringement. However, I respect-
fully dissent from the court’s rejection of the jury’s damages
verdict.
The issue of damages was tried to the jury, on the evi-
dence and arguments presented by the parties. The dis-
trict court sustained the verdict, for it was supported by
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2 LUBBY HOLDINGS LLC v. CHUNG

substantial evidence. 1 There is no sound basis for this
court’s appellate discard of the jury’s verdict.
DISCUSSION
The e-cigarette device of the ’284 patent is the inven-
tion of Christian Rado, the owner of Lubby Holdings LLC
and Vaporous Technologies, Inc. (collectively “Lubby”). In
evidence at the trial were Henry Chung’s business records
of his relationship with Rado and between their companies,
the parties’ confidentiality agreements concerning this in-
vention, and documentation of Chung’s importations and
sales of this e-cigarette device, showing Chung’s costs and
profits. This information was validated by Chung in his
testimony at the trial.
Nonetheless, my colleagues discard the jury’s damages
verdict, on the theory that Chung did not have notice of
infringement until he was served with the complaint in the
district court action. On this ground, my colleagues hold
that there can be no liability for infringement before the
date of service. 2 This theory ignores Chung’s admitted
knowledge, for these parties had been collaborators in con-
nection with this invention. Rado testified that when the
collaboration ended he told Chung not to infringe, and
Chung acknowledged this warning.

1 Lubby Holdings, Inc. v. Chung, No. 2:18-cv-00715-
RGK-JC, 2019 WL 4284507 (C.D. Cal., June 17, 2019);
Lubby Holdings, Inc. v. Chung, No. 2:18-cv-00715-RGK-JC,
2019 WL 8105375 (C.D. Cal., July 12, 2019).
2 At the trial, Chung’s defense to infringement was
that he did not personally infringe; only his company in-
fringed. The jury’s finding of personal liability is not ne-
gated by my colleagues.
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LUBBY HOLDINGS LLC v. CHUNG 3

The jury was told of the collaboration between Rado
and Chung, their two Supply Agreements, a Consulting
Agreement, two Confidentiality Agreements, and the man-
ufacturing arrangements involving Chung’s contacts in
China – all for the e-cigarette device of Rado’s ’284 patent.
When the collaboration ended, Rado told Chung not to in-
fringe, and Chung nonetheless did so. This testimony and
evidence was before the jury, in examination and cross ex-
amination; the jury found liability and awarded damages
measured as a royalty on Chung’s sales.
By post-trial motion Chung argued that Lubby had not
complied with the marking statute, 35 U.S.C. § 287; the
district court stated that absence of marking was not es-
tablished because no insufficiently marked product was
identified in Chung’s pre-trial Answer or Memorandum of
Contentions of Fact and Law. The district court held that
the damages verdict was supported by substantial evi-
dence.
The panel majority holds that Chung did not have no-
tice of infringement and cannot be liable for damages until
he was served with the complaint. However, “as an appel-
late court, it is beyond our role to reweigh the evidence or
consider what the record might have supported, or investi-
gate potential arguments that were not meaningfully
raised.” Apple, Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d
1034, 1062 (Fed. Cir. 2016). The essence of jury trial is that
the parties choose how to present their case to the jury, and
the jury’s verdict is reviewed on the record of the trial. See
Sage Prod’s, Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426
(Fed. Cir. 1997) (“[A]ppellate courts do not consider a
party’s new theories, lodged first on appeal. If a litigant
seeks to show error in a trial court’s overlooking an argu-
ment, it must first present that argument to the trial
court.”).
In evidence were Chung’s business records, which
Chung ratified at trial, showing the high profit margin for
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4 LUBBY HOLDINGS LLC v. CHUNG

this product. Chung’s records showed sales of at least
36,453 units of this device. Trial Ex. 201 (Appx1053).
These sales were the basis for the calculation of damages
of $863,936.10. At the trial Chung argued for a lower roy-
alty rate, and Rado emphasized the high profits for this de-
vice. See Avetek Danmark A/S v. CMI USA Inc., 852 F.3d
1352, 1362 (Fed. Cir. 2017) (“We have explained that a pa-
tent owner would be ‘unlikely’ to be ‘interested in’ accepting
a royalty rate lower than its profit margin on the patented
products.”).
It is the jury’s role to weigh the evidence and argument
and apply the law as instructed on the law. The court, in
post-trial review of the jury verdict, must “view the evi-
dence in the light most favorable to the party in whose fa-
vor the jury returned a verdict and draw all reasonable
inferences in its favor.” First Nat’l Mortg. Co. v. Fed. Realty
Inv. Tr., 631 F.3d 1058, 1067 (9th Cir. 2011). It is not the
appellate role to act as factfinder on appeal. “We affirm
unless there is a clear showing of an absolute absence of
evidence to support the jury’s verdict.” Duff v. Werner En-
ters., Inc., 489 F.3d 727, 730 (5th Cir. 2007).
A jury’s verdict must be accepted unless “the record
contains no evidence in support of the verdict.” Molski v.
M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting
Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d
1342 (9th Cir. 1985)). The panel majority now discards the
trial procedure, and devises a new theory whereby the
court excuses all infringing activity occurring before the fil-
ing of the district court complaint. No jury instruction was
given on my colleagues’ theory of absence of notice of in-
fringement. See Robert Bosch LLC v. Pylon Mfg. Corp., 659
F.3d 1142, 1154 n.5 (Fed. Cir. 2011) (“[E]videntiary objec-
tions not raised before the trial court are deemed
waived…”).
Assertion that Chung had no knowledge of infringe-
ment was not presented at the trial. A motion to alter a
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LUBBY HOLDINGS LLC v. CHUNG 5

jury verdict can be granted only when “the evidence, con-
strued in the light most favorable to the nonmoving party,
permits only one reasonable conclusion, and that conclu-
sion is contrary to the jury’s verdict.” Pavao v. Pagay, 307
F.3d 915, 918 (9th Cir. 2002). “To the extent that there
were conflicts in the evidence, neither the trial court
upon motion for judgment n.o.v. nor the appellate court
may substitute its choice of result for that of the jury.”
Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d
1555, 1580 (Fed. Cir. 1992) (“Applying the standard of ap-
pellate review of a jury award of damages, the jury’s find-
ing must be upheld unless the amount is ‘grossly
excessive or monstrous,’ clearly not supported by the ev-
idence, or based only on speculation or guesswork.”) (cit-
ing Los Angeles Mem’l Coliseum Comm’n v. Nat’l
Football League, 791 F.2d 1356, 1360 (9th Cir. 1986).
From my colleagues’ contrary rulings, I respectfully
dissent.