Federal Circuit Faults Defendant for Gamesmanship for Presenting Untimely Noninfringement Theory Based on Lack of Data it Blocked in Discovery

In Magēmā Technology LLC v. Phillips 66, No. 2024-1342 (Fed. Cir. Sept. 8, 2025) the Federal Circuit reversed denial of a motion for a new trial after the defendant argued it needed testing data to prove infringement when it had previously represented that testing data would be too dangerous to obtain.

Magēmā alleged Phillips’ refineries infringed a patent relating to desulfurizing heavy marine fuel oil (HMFO) to comply with international sulfur content standards. Right before jury selection, Phillips introduced a new noninfringement theory by arguing Magēmā could not prove infringement without actual product testing data. Magēmā timely objected, contending Phillips had prevented Magēmā from accessing testing data because, during discovery, Phillips argued it would be too dangerous to obtain. The judge overruled the objection, Phillips presented its theory, and the jury found for Phillips.

The court subsequently denied Magēmā’s motion for a new trial, finding Phillips’ new theory improper and prejudicial, but harmless.

The Federal Circuit reversed and remanded for a new trial, holding the new theory not harmless. Because the jury’s verdict did not specify its reasoning, the Court could not be reasonably certain it was untainted by Phillips’ improper and untimely theory. The Court instructed that Phillips may not argue on remand that it needs testing data for infringement.

The Court also affirmed the district court’s construction of “HMFO,” holding the specification “clearly and expressly” defines it, and rejected Phillips’ alternative grounds for affirmance of the verdict.