Sunoco Partners Marketing & Terminals L.p. v. Powder Springs Logistics, LLC, Magellan Midstream Partners L.p.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SUNOCO PARTNERS MARKETING & TERMINALS
L.P.,
Plaintiff-Appellant
v.
POWDER SPRINGS LOGISTICS, LLC, MAGELLAN
MIDSTREAM PARTNERS L.P.,
Defendants-Cross-Appellants
______________________
2023-1218, 2023-1274
______________________
Appeals from the United States District Court for the
District of Delaware in No. 1:17-cv-01390-RGA, Judge
Richard G. Andrews.
______________________
Decided: January 16, 2026
______________________
J OHN R. K EVILLE, Sheppard, Mullin, Richter & Hamp-
ton LLP, Houston, TX, argued for plaintiff-appellant. Also
represented by MICHAEL C. K RILL , MICHELLE REPLOGLE;
RICHARD L. STANLEY , Law Office of Richard L. Stanley,
Houston, TX.
N ITIKA G UPTA F IORELLA , Fish & Richardson P.C., Wil-
mington, DE, argued for all defendants-cross-appellants.
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Defendant-cross-appellant Magellan Midstream Partners
L.P. also represented by MARTINA T YREUS H UFNAL ,
D OUGLAS E. MCCANN; J OSEPH HERRIGES , J R., Minneapolis,
MN.
D AVID SCOTT MORELAND, Miller & Martin PLLC, At-
lanta, GA, for defendant-cross-appellant Powder Springs
Logistics, LLC.
______________________
Before S TOLL , CLEVENGER , and CUNNINGHAM , Circuit
Judges.
STOLL , Circuit Judge.
This patent infringement case raises issues of eligibil-
ity, infringement, and damages and is related to systems
and methods of blending butane with gasoline. Sunoco
Partners Marketing & Terminals L.P. sued Magellan Mid-
stream Partners L.P. and Powder Springs Logistics, LLC
for patent infringement, which ultimately proceeded to a
bifurcated jury trial. A final judgment was entered against
Magellan for willfully infringing claim 3 of U.S. Patent
No. 6,679,302, claims 31 and 32 of U.S. Patent
No. 7,032,629, and claim 3 of U.S. Patent No. 9,207,686. A
final judgment was entered against Powder Springs for
willfully infringing claim 3 of the ’686 patent.
Sunoco challenges on appeal several decisions by the
district court that occurred pre-trial, during trial, and post-
trial related to damages, as well as the district court’s judg-
ment as a matter of law that claims 16 and 17 of the
’302 patent and claims 18 and 22 of the ’629 patent were
not infringed. Magellan and Powder Springs cross-appeal
the district court’s judgment under Federal Rule of Civil
Procedure 52(c) that claims 3, 16, and 17 of the ’302 pa-
tent, claims 18, 22, 31, and 32 of the ’629 patent, and
claim 3 of the ’686 patent are eligible under 35 U.S.C.
§ 101, as well as the district court’s decision to award
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supplemental damages to Sunoco. For the reasons dis-
cussed below, we affirm the district court’s damages deci-
sions, affirm the district court’s JMOL of no infringement,
and affirm-in-part and reverse-in-part the district court’s
eligibility decision.
BACKGROUND
I
The ’302 and ’629 patents are titled “Method and Sys-
tem for Blending Gasoline and Butane at the Point of Dis-
tribution.” U.S. Patent No. 6,679,302 Title; U.S. Patent
No. 7,032,629 Title. They are directed to “blending butane
with gasoline at petroleum tank farms, immediately before
distribution to tanker trucks,” and share a common speci-
fication, as the ’629 patent is a continuation of the ’302 pa-
tent. ’302 patent Abstract; ’629 patent Abstract. The
“Background of the Invention” explains that “[b]utane has
historically been blended with gasoline at several points in
the gasoline distribution chain.” ’302 patent col. 1 ll. 65–
66. Butane is added to gasoline for two reasons: (1) be-
cause it is more volatile than gasoline, it is “commonly
added as a RVP modifying agent,” where RVP stands for
Reid vapor pressure and is the measure of a petroleum
product’s ability to combust; and (2) because it “reduce[s]
the cost of gasoline.” Id. at col. 1 ll. 31–51. The Environ-
mental Protection Agency has promulgated regulations on
how much butane can be blended with gasoline. Id.
at col. 1 ll. 52–64.
The specification explains that one of the locations in
the gasoline distribution chain where butane has histori-
cally been added to gasoline is at tank farms, before the
gasoline is dispensed to tanker trucks using a dispensing
unit such as a rack. Id. at col. 1 ll. 65–66, col. 2 ll. 24–40,
col. 5 ll. 13–20. The specification describes blending at the
tank farm: “When delivery of gasoline is made to a large
storage tank, the RVP of the tank is measured, and suffi-
cient butane is added to the tank to attain a desired RVP.”
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Id. at col. 2 ll. 24–27. “However, blending butane at tank
farms is not without its complications,” including that it is
“labor intensive and imprecise.” Id. at col. 2 ll. 34–41. Ad-
ditionally, “[e]ach time that gasoline is introduced to a
tank, the RVP must again be measured, and butane must
be added to the, [sic] tank to attain a desired RVP.” Id.
at col. 2 ll. 34–37. But “[o]ften, gasoline will be dispensed
to several tanker trucks before the butane can be
blended, . . . losing the opportunity to blend butane in those
shipments.” Id. at col. 2 ll. 37–40. Thus, after the butane
is offloaded into the gasoline tank, the tank then takes
“considerable stirring” to render the mixture homogeneous.
Id. at col. 2 ll. 39–44. The specification explains that, be-
cause these conventional methods were imprecise, suppli-
ers were unable to maximize the amount of butane blended
with gasoline. See id. at col. 2 ll. 39–52, col. 2 l. 66–col. 3
l. 11.
The patented invention offers a solution: unlike prior
manual blending methods where butane was added di-
rectly to the gasoline tank, “blending occurs downstream of
the gasoline and butane storage tanks on the tank farm,
after the gasoline and butane are drawn from their storage
tanks for dispensing into a tanker truck, but before the gas-
oline is actually dispensed to the tanker truck at the rack.”
Id. at col. 3 ll. 17–21. The invention uses a “blending ap-
paratus” for blending the butane and gasoline streams at
varying blend ratios to achieve a desired vapor pressure,
and the apparatus is “under the continuous control of a pro-
cess control unit, which can vary the ratio at which gaso-
line and butane are blended to attain a desired vapor
pressure.” Id. at col. 3 ll. 21–31. The specification explains
that these features offer “a number of significant ad-
vantages”: (1) “[t]he amount of butane blended with the
gasoline can be more thoroughly controlled, yielding less
RVP variability”; (2) “butane and gasoline can be blended
to yield consistent optimal performance of motor vehicles
that employ the blended gasoline”; (3) “[t]he ratio of butane
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and-gasoline [sic] blended can be easily varied and con-
trolled to comply with regional and/or seasonal RVP re-
quirements imposed by EPA or state regulations”; and
(4) “tank farm operators are able to maximize the amounts
of butane that they blend with gasoline, and minimize their
cost basis for the gasoline sold.” Id. at col. 3 ll. 44–67.
Sunoco asserted claims 3, 16, and 17 of the ’302 patent
and claims 18, 22, 31, and 32 of the ’629 patent at trial.
Claim 3 of the ’302 patent, which depends from claims 1
and 2, provides:
1. A system for blending gasoline and butane at a
tank farm comprising:
a) a tank of gasoline;
b) a tank of butane;
c) a blending unit, at the tank farm, down-
stream of and in fluid connection with the tank
of gasoline and the tank of butane;
d) a dispensing unit downstream of and in fluid
connection with the blending unit; and
e) a rack, wherein the dispensing unit is lo-
cated at the rack and is adapted to dispense
gasoline to gasoline transport vehicles.
2. The system of claim 1 further comprising a pro-
cess control unit, wherein the process control unit
generates a ratio input signal that controls the ra-
tio of butane and gasoline blended by the blending
unit.
3. The system of claim 2 wherein the ratio input
signal is derived from a calculation of the ratio of
butane and gasoline that will yield a desired vapor
pressure.
Id. at col. 13 ll. 12–31. Claims 16 and 17 of the ’302 patent,
which depend from claims 12, 13, and 14, provide:
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12. A method for blending gasoline and butane at
a tank farm comprising:
a) drawing a gasoline stream from a tank of
gasoline;
b) drawing a butane stream from a tank of bu-
tane;
c) blending the butane and gasoline streams, at
the tank farm, to form a blend; and
d) dispensing the blend to gasoline transport
vehicles using a dispensing unit located at a
rack.
13. The method of claim 12, further comprising:
a) determining a blend ratio of butane and gas-
oline in the butane and gasoline streams that
will yield a desired vapor pressure, and
b) blending the gasoline and butane streams at
the blend ratio.
14. The method of claim 13, wherein the blend ra-
tio is determined from a vapor pressure of the gas-
oline stream and a vapor pressure of the butane
stream.
16. The method of claim 14, wherein the step of de-
termining the blend ratio comprises:
a) setting a predetermined value for the vapor
pressure of the blend;
b) transmitting the predetermined value for
the vapor pressure of the blend to a processing
unit;
c) transmitting the gasoline vapor pressure
and the butane vapor pressure to the pro-
cessing unit;
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d) calculating the blend ratio from the gasoline
vapor pressure, the butane vapor pressure, and
the predetermined value for the vapor pressure
of the blend.
17. The method of claim 16, further comprising:
a) transmitting a signal that corresponds to the
vapor pressure of the blend from the processing
unit to a programmable logic control; and
b) adjusting the ratio of butane and gasoline
blended in the blending unit with the program-
mable logic control.
Id. at col. 14 ll. 3–21, col. 14 ll. 33–50.
Claims 18 and 22 of the ’629 patent, which depend
from claim 17, provide:
17. A computer-implemented method for blending
a butane stream with a gasoline stream comprising
the steps of:
receiving a first measurement indicating a va-
por pressure of the gasoline stream;
receiving a second measurement indicating a
vapor pressure of the butane stream;
calculating a blend rate at which the butane
stream can be blended with a gasoline stream;
and
transmitting an instruction to a programmable
logic controller for adjusting the butane stream
to the calculated blend rate for blending with
the gasoline stream and distributing at a rack.
18. The computer-implemented method of
claim 17, wherein the blend rate is based on a pre-
determined vapor pressure for the blended gasoline
and butane.
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22. The computer-implemented method of
claim 17, further comprising the steps of:
receiving a third measurement indicating a va-
por pressure of the blend of the gasoline stream
and the butane stream; and
generating a report comprising the third meas-
urement.
’629 patent col. 14 ll. 38–52, col. 14 ll. 62–67. Claims 31
and 32 of the ’629 patent provide:
31. A computer-implemented method for blending
a butane stream and a gasoline stream comprising
the steps of:
receiving a first measurement indicating a va-
por pressure of the gasoline stream;
calculating a blend rate at which the butane
stream can be blended with the gasoline
stream;
transmitting an instruction to a programmable
logic controller for adjusting the butane stream
to the calculated blend rate for blending with
the gasoline stream and distributing at a rack;
and
receiving a second measurement indicating a
vapor pressure of the blended gasoline stream
and butane stream.
32. The computer-implemented method of
claim 31, further comprising the step of generating
a report comprising the second measurement.
Id. at col. 16 ll. 8–24.
II
The ’686 patent is titled “Versatile Systems for Contin-
uous In-line Blending of Butane and Petroleum,” is
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directed to “in-line processes of blending butane into gaso-
line streams, and for blending butane into a gasoline
stream at any point along a petroleum pipeline,” and is a
continuation-in-part of the ’629 patent. U.S. Patent
No. 9,207,686 Title, Abstract. The “Background of the In-
vention” explains that “[s]everal methods have been at-
tempted to improve the precision of butane blending and
the predictability of Reid vapor pressure in the final prod-
uct.” Id. at col. 3 ll. 1–3. The specification explains that
“[b]y combining the advantages of in-line vapor pressure
monitoring both upstream and downstream of a butane
blending operation,” the patented invention is “a tightly
controlled butane blending system with surprising versa-
tility that can be used to blend butane with petroleum
products at practically any point along a petroleum pipe-
line, regardless of variations in the flow rate of gaso-
line . . . , the time of year . . . , or the ultimate destination.”
Id. at col. 3 ll. 15–23. The invention allows “petroleum ven-
dors and distributors . . . to take optimum advantage of the
many cost saving and performance benefits that butane
blending offers, and to do so without regard to the location
where the blending occurs along the pipeline.” Id. at col. 3
ll. 24–28.
Sunoco asserted only claim 3 at trial. Claim 3 depends
from claim 1 and provides:
1. A method for in-line blending of gasoline and a
volatility modifying agent comprising:
a) providing a continuously flowing gasoline
stream that comprises:
i) a plurality of batches of different gasoline
types;
ii) a gasoline flow rate that varies over
time; and
iii) a plurality of gasoline vapor pressures;
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b) providing an allowable vapor pressure;
c) providing a stream of said agent that com-
prises an agent vapor pressure;
d) periodically determining said gasoline vapor
pressure;
e) periodically determining said gasoline flow
rate;
f) calculating a blend ratio based upon said
agent vapor pressure, said gasoline vapor pres-
sure, and said allowable vapor pressure; and
g) blending said agent stream and said gaso-
line stream at a blending unit at said blend ra-
tio to provide a blended gasoline stream having
a blended vapor pressure less than or equal to
said allowable vapor pressure.
3. The method of claim 1, further comprising:
a) providing a first information processing unit
(IPU) on which said calculating is performed;
b) providing a second IPU which generates
pulses of flow rate data;
c) transmitting said flow rate data to said first
IPU; and
d) calculating a blend rate on said first IPU
based upon said flow rate data from said second
IPU.
Id. at col. 15 l. 62–col. 16 l. 13, col. 16 ll. 16–23.
III
Sunoco purchased the asserted patents from Texon LP
in 2010, when it acquired all of Texon’s butane blending
business. After the purchase, Sunoco adopted Texon’s
method of licensing its patents as part of Butane Supply
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Agreements (“BSAs”). Under the BSAs, Sunoco (1) con-
structs and operates its patented system at a licensee’s gas-
oline terminal, (2) supplies butane needed for the system,
and (3) grants a limited license to its patents, all in ex-
change for sharing the licensee’s profits from selling the ex-
tra gasoline created using the patented inventions. Also
under the BSAs, Sunoco performs services related to
(1) making and using the patented inventions, such as de-
signing, engineering, constructing, and maintaining the
blending systems; and (2) providing regulatory oversight
support, maintenance and support services, risk manage-
ment, customer services, and financial services related to
butane hedging, among others. Additionally, Sunoco’s
BSAs include the use of its proprietary blending algorithm
with its patented system. Generally, the parties to the
BSAs share the resulting profits 40/60 or 50/50 with
Sunoco only being compensated for its share of the profit
on the gasoline gallons created, not on the sale of all gallons
blended with the patented technology. The difference in
profit-share depends on which party provides construction
capital for building the blending system: Sunoco gets a
40 percent profit-share when the licensee provides the con-
struction capital and a 50 percent profit-share when it pro-
vides the capital.
Sunoco has granted rights to its patents under an ar-
rangement other than the above described BSA methodol-
ogy only once. When Sunoco acquired Texon’s butane
blending business, a preexisting licensee of Texon, Buckeye
Terminals, LLC, wanted to continue its BSA with Texon
rather than Sunoco. Sunoco agreed to allow Texon to con-
tinue to use the patented inventions for Buckeye, and un-
der the “Buckeye License,” Texon paid Sunoco $0.02/gallon
for patented blending at all Buckeye terminals for ten
years and 60 percent of Texon’s profits at any future Buck-
eye terminals. Buckeye and Texon used a 50/50 profit-
share, so Sunoco’s 60 percent share from Texon’s profit was
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30 percent of the total profits from the use of the patented
inventions at Buckeye terminals.
In 2013, Colonial Pipeline Company sought an auto-
mated blending system for the Colonial Pipeline, which is
the largest refined products pipeline system in the country.
Sunoco and Magellan competed for the project, with Sunoco
proposing use of its patented blending technology with a
50/50 profit-share under its established BSA methodology.
Colonial, however, chose Magellan’s proposal, under which
Magellan would construct, operate, and maintain the sys-
tem, as well as supply butane and provide other services,
in exchange for a 40/60 profit-share. Colonial and Magel-
lan jointly formed Powder Springs, which began blending
on the pipeline in 2017. Sunoco still operates its own pa-
tented systems at 25 terminals on the Colonial Pipeline
downstream of Powder Springs’s terminals.
IV
In 2017, Sunoco filed suit for patent infringement in
the District of Delaware, initially suing Magellan and Pow-
der Springs (or, collectively, “Defendants-Cross-Appel-
lants”) for infringing multiple claims across five patents.
Sunoco requested a damages award based on its BSA
profit-sharing methodology. Several stages of the underly-
ing lawsuit—which ultimately proceeded to a bifurcated
trial on (1) liability, where the jury found claims 3, 16,
and 17 of the ’302 patent, claims 18, 22, 31, and 32 of the
’629 patent, and claim 3 of the ’686 patent valid and will-
fully infringed; and (2) damages, where the jury awarded
Sunoco approximately $12 million—are relevant to this ap-
peal.
A
Before trial, Defendants-Cross-Appellants sought to
exclude the opinions of Sunoco’s damages expert, Dr. Keith
Ugone, as unreliable under Daubert v. Merrell Dow Phar-
maceuticals, Inc., 509 U.S. 579 (1993), because Dr. Ugone
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failed to apportion Sunoco’s BSAs to reflect only the value
of the patented inventions. After allowing Sunoco an op-
portunity to supplement Dr. Ugone’s opinions to show ap-
portionment, the district court struck his supplemental
opinions for failing to apportion appropriately.
In so doing, the district court first determined that the
“entire market value analysis in Dr. Ugone’s supplemental
report is unreliable.” J.A. 22. The court found that
Dr. Ugone did “not identify reliable evidence to allow
Sunoco to ‘meet its burden to show that the patented fea-
ture was the sole driver of consumer demand, i.e., that it
alone motivated consumers to buy the accused the [sic]
products or substantially creates the value of the compo-
nent parts.’” Id. (quoting the entire market value standard
set forth in Power Integrations, Inc. v. Fairchild Semicon-
ductor Int’l, Inc., 904 F.3d 965, 979–80 (Fed. Cir. 2018)).
The district court also noted that it does not “follow[] that
the ‘sole driver’ requirement is satisfied” merely because
the non-patented features offered as part of Sunoco’s BSAs
are not sold separately from the patented features. J.A. 23
(citing LaserDynamics, Inc. v. Quanta Comput., Inc.,
694 F.3d 51, 68 (Fed. Cir. 2012)). Further, the district
court determined that Sunoco had not provided evidence to
meet its burden to show that its patented features substan-
tially create the value of the component parts of the BSA,
“especially given the undisputed evidence that Sunoco’s
services are valued for their non-patented features, such as
their expertise and algorithm.” J.A. 23–24 (citations omit-
ted).
Turning to Dr. Ugone’s purported apportionment anal-
ysis, the district court determined that his analysis was un-
reliable because Dr. Ugone did not analyze the value of
certain unpatented features of Sunoco’s BSAs. This in-
cluded Sunoco’s blending algorithm, which the district
court did not view as “part of the patented system” because
of testimony that the algorithm was “proprietary and a
Sunoco trade secret.” J.A. 24–25 (citations omitted). As to
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Dr. Ugone’s opinions on lost opportunity cost, the district
court determined that those too were unreliable because he
“failed to apportion the value lost due to non-infringing
manual blending.” J.A. 25. Thus, the district court struck
all of Sunoco’s damages expert’s opinions.1
B
At trial, Sunoco requested jury instructions regarding
lost profits based on evidence it elicited from fact wit-
nesses, such as (1) testimony that the patents drove de-
mand for Sunoco’s BSAs, and (2) testimony about the
30 percent profit sharing arrangement between Sunoco
and Texon from the Buckeye License. The district court,
however, rejected the proposed instruction and precluded
Sunoco from arguing for damages based on “some value
that’s intermediate” to the “full value” of the 40 or 50 per-
cent rates in the BSAs or the 30 percent rate in the
1 Sunoco filed several other suits that involve the as-
serted patents, including a suit against U.S. Venture, Inc.
in the Northern District of Illinois for infringing different
claims of the ’302 and ’629 patents. Sunoco P’ship Mktg. &
Terminals L.P. v. U.S. Venture, Inc., 436 F. Supp. 3d 1099,
1107 (N.D. Ill. 2020) (“U.S. Venture I”). Notably, in U.S.
Venture I, Sunoco sought damages based on its BSAs rely-
ing on the testimony of the same expert, Dr. Ugone. After
a bench trial, the Illinois district court determined that
Dr. Ugone’s failure to apportion the BSAs to reflect only
the value of the asserted and infringed patent claims pro-
hibited Sunoco from recovering lost profits or reasonable
royalty damages based on the full value of the BSAs. Id.
at 1127–30. Sunoco appealed that decision to this court,
arguing the district court erred in rejecting BSA-based
damages, and we affirmed the Illinois district court’s dam-
ages decision. Sunoco Partners Mktg. & Terminals L.P.
v. U.S. Venture, Inc., 32 F.4th 1161, 1179–81 (Fed. Cir.
2022) (“U.S. Venture II”).
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Buckeye License. See J.A. 23229–31 (Trial Tr. 1461:5–
1463:15). The district court had warned Sunoco prior to
trial that such a theory “is no more proper . . . coming from
fact witnesses than it would have been coming from
Dr. Ugone” and that “someone must apportion” the BSAs.
J.A. 14509 (Hearing Tr. 95:18–97:7). Thus, the royalty
rate that Sunoco could seek from the jury in its closing ar-
gument was limited to the $0.02/gallon rate that Defend-
ants-Cross-Appellants’ expert, Dr. Robert Maness,
proposed based on the Buckeye License.
C
During post-trial proceedings, the district court issued
three orders relevant to this appeal: (1) an order address-
ing patent eligibility as to each asserted claim, (2) an order
addressing JMOL of no infringement and of no willful in-
fringement, and (3) an order addressing enhanced and sup-
plemental damages.
1
The district court denied Defendants-Cross-Appel-
lants’ renewed motion under Federal Rule of Civil Proce-
dure 52(c) that all asserted claims are ineligible under
35 U.S.C. § 101. Defendants-Cross-Appellants argued that
the asserted claims of the ’302 and ’629 patents are di-
rected to “the abstract idea of gathering and transmitting
blend data and using generic computer components to cal-
culate a blend ratio and add butane to gasoline,” with the
focus of the claims on “using a computer to automate as-
pects of butane blending that have long been done manu-
ally.” Sunoco Partners Mktg. & Terminals L.P. v. Powder
Springs Logistics, LLC, 624 F. Supp. 3d 484, 489 (D. Del.
2022) (“101 Order”) (citations omitted). The district court,
however, disagreed and determined that Defendants-
Cross-Appellants had “failed to show that the claimed in-
vention simply automates this prior manual blending,” and
instead the court determined “that claims 3, 16, and 17 of
the ’302 patent and claims 18, 22, 31, and 32 of the
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’629 patent are directed to improved systems and methods
for blending butane.” Id. at 490.
The district court explained that the specification de-
scribed improvements over conventional methods of bu-
tane blending:
Specifically, “[b]y blending gasoline and butane im-
mediately before the gasoline is dispensed to a
tanker truck, and by continuously controlling the
ratio of gasoline and butane blended by the blend-
ing apparatus, a number of significant advantages
are attained, including,” among other things, that
“[t]he ratio of butane and[ ] gasoline blended can be
easily varied and controlled” and “operators are
able to maximize the amounts of butane that they
blend.”
Id. at 491 (second and third alteration in original) (quoting
’302 patent col. 3 ll. 44–67). The district court determined
that the patents’ claims capture these improved blending
methods. The district court further analogized this case to
EcoServices, LLC v. Certified Aviation Services, LLC,
830 F. App’x 634 (Fed. Cir. 2020), and CardioNet, LLC
v. InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020), to con-
clude that the “claims are not simply directed to the auto-
mation of the prior manual blending methods in which an
operator would measure the RVP of samples from a gaso-
line tank, add the appropriate amount of butane into the
tank, stir the tank, and then measure the RVP of the
blend.” 101 Order at 492. Instead, the district court held
that “the claims are directed to specific technical systems
and methods that ‘allow[ ] a distributor to blend more gas-
oline than would be possible with the prior art.’” Id. (alter-
ation in original) (quoting ’302 patent col. 11 ll. 53–55). As
the district court determined the claims were not directed
to ineligible subject matter under Alice step one, the court
did not proceed to Alice step two.
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As to the ’686 patent, Defendants-Cross-Appellants ar-
gued that claim 3 is directed to the “abstract idea of receiv-
ing blending data and using a generic computer to make
calculations based on those measurements,” which “is
simply the automation of the well-known methods for man-
ual blending along a pipeline.” Id. at 493 (citation omit-
ted). The district court, however, determined that
Defendants-Cross-Appellants had not met their burden to
show that “claim 3 is directed simply to the automation of
these prior manual blending methods,” holding that
“[c]laim 3 is instead directed to a specific method for in-line
blending.” Id. The district court concluded that claim 3
captures unconventional methods of in-line blending by re-
citing (1) “‘periodically determining said gasoline vapor
pressure’ and ‘said gasoline flow rate’”; (2) “calculating a
blend ratio based upon . . . said gasoline vapor pressure[ ]
and said allowable vapor pressure”; and (3) “‘blending’ the
butane and gasoline streams ‘at a blending unit at said
blend ratio to provide a blended gasoline stream having a
blended vapor pressure less than or equal to said allowable
vapor pressure.’” Id. at 493–94 (alteration and omission in
original) (quoting ’686 patent col. 15 l. 61–col. 16 l. 13).
The district court explained that McRO, Inc. v. Bandai
Namco Games America Inc., 837 F.3d 1299 (Fed. Cir.
2016), is instructive in determining that Defendants-
Cross-Appellants had failed to provide sufficient evidence
that the prior art blending process was the same process
required by claim 3. The district court thus held that the
claimed invention used a computer to perform a distinct
process to automate a task compared to what was previ-
ously manually performed. See 101 Order at 494.2 Again,
2 As part of its 101 Order, the district court also
noted that it struck exhibits related to the prior art Kerr-
McGee system as untimely and declined to use Defendants-
Cross-Appellants’ remaining proposed findings of fact that
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as the district court determined the claim was not directed
to ineligible subject matter under Alice step one, the court
did not proceed to Alice step two.3
2
The district court granted JMOL of no infringement for
claims 16 and 17 of the ’302 patent and claims 18 and 22 of
the ’629 patent but denied JMOL of no infringement on the
other claims the jury found infringed. The district court
concluded that claims 16 and 17 of the ’302 patent and
claims 18 and 22 of the ’629 patent “require[] knowing
(whether it be through, for example, actual measurement,
through looking it up in a table or other resource, or
through knowledge of an inherent characteristic) the vapor
pressure of the gasoline or butane to be blended.” Sunoco
Partners Mktg. & Terminals L.P. v. Powder Springs Logis-
tics, LLC, 624 F. Supp. 3d 473, 477 (D. Del. 2022) (“In-
fringement Order”) (quotation marks and citation omitted).
The district court considered a prior decision of our court
that held “the phrase ‘vapor pressure of the butane stream’
in claim 17 of the ’302 patent covers an assumed vapor
pressure value.” Id. (citing U.S. Venture II, 32 F.4th
at 1175–76). The district court next considered that it was
relied on excerpts of the Kerr-McGee documents from the
prosecution history of another related patent to find the
claimed blending steps were conventional activities. See
101 Order at 490 n.3.
3 Sunoco sued U.S. Venture in the Southern District
of Texas for infringing different claims of the ’686 patent.
Sunoco Partners Mktg. & Terminals L.P. v. U.S. Venture,
Inc., 598 F. Supp. 3d 520, 523 (S.D. Tex. 2022) (“U.S. Ven-
ture Tex. Op.”), appeal dismissed, 2023 WL 8366206
(Fed. Cir. Dec. 4, 2023). There, the Texas district court
held claims 16 and 17 of the ’686 patent ineligible under
35 U.S.C. § 101. Id. at 535–41. Neither claim recites peri-
odically determining gasoline vapor pressure or flow rate.
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undisputed the accused products do not measure the vapor
pressure of the butane but use an inherent butane RVP of
52 psi. The district court concluded that using an assumed
butane vapor pressure satisfied the claim limitations re-
quiring knowledge of a butane vapor pressure. The district
court, however, determined that this knowledge was not
enough to satisfy the “receiving” limitation of claims 18
and 22 of the ’629 patent and “transmitting” limitation of
claims 16 and 17 of the ’302 patent, and held that Sunoco’s
expert’s conclusory testimony on these limitations could
not constitute substantial evidence to support the jury ver-
dict of infringement for these claims.
In its Infringement Order, the district court also denied
Defendants-Cross-Appellants’ motion for JMOL of no will-
ful infringement for all asserted claims.
3
The district court declined to enhance Sunoco’s dam-
ages award, despite its denial of JMOL of no willful in-
fringement. The district court considered the Read factors
as part of its analysis, see Sunoco Partners Mktg. & Termi-
nals L.P. v. Powder Springs Logistics, LLC, No. 17-cv-
01390-RGA, 2022 WL 3973499, at *1 (D. Del. Aug. 31,
2022) (“Damages Order”) (citing Read Corp. v. Portec, Inc.,
970 F.2d 816, 827 (Fed. Cir. 1992)), ultimately concluding
that the factors weighed against enhancing damages. Id.
at *3.
The district court also awarded supplemental damages
at a $0.02/gallon royalty rate for Defendants-Cross-Appel-
lants’ infringement that was not covered by the jury ver-
dict. The district court explained that the jury’s damages
number of $12,200,958.44 was the exact number presented
by Sunoco in closing argument from multiplying the roy-
alty rate of $0.02/gallon by the infringing volumes of
blended gasoline through the end in January 2019. “Thus,
[the district court] ha[d] no doubt that the jury only consid-
ered Defendants’ infringement through January 2019
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when assessing damages.” Id. And while the district court
acknowledged that Sunoco had Defendants-Cross-Appel-
lants’ blending volumes through October 2021 prior to
trial, the court reasoned that (1) this information came in
after fact and expert discovery closed, (2) there was no wit-
ness at trial or within subpoena range through whom
Sunoco could have introduced these new volumes, and
(3) other efforts to remedy an authentication problem may
not have been successful. Accordingly, the district court
determined that Sunoco “had no practical means of pre-
senting these new volumes to the jury.” Id. As “the jury
only compensated Sunoco for infringement through Janu-
ary 2019, [the district court] believe[d] supplemental dam-
ages [were] necessary to properly compensate Sunoco for
Defendants’ infringement.” Id. at *4.
* * *
Sunoco appeals the district court’s (1) decision to strike
Dr. Ugone’s various damages opinions, (2) decision not to
instruct the jury on lost profits and to preclude Sunoco from
asking the jury for a royalty based on its BSAs or Buckeye
License, (3) decision not to award enhanced damages for
Defendants-Cross-Appellants’ willful infringement, and
(4) decision to grant JMOL of no infringement of claims 16
and 17 of the ’302 patent and claims 18 and 22 of the
’629 patent. Magellan and Powder Springs cross-appeal
the district court’s decisions (1) holding all asserted claims
eligible and (2) awarding supplemental damages. We have
jurisdiction under 28 U.S.C. § 1295(a)(1).
D ISCUSSION
MAGELLAN AND P OWDER SPRINGS ’S CROSS -A PPEAL
We first address Magellan and Powder Springs’s cross-
appeal, as they challenge the eligibility of all patent claims
at issue. Magellan and Powder Springs also challenge the
district court’s award of pre-verdict supplemental damages
to Sunoco.
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I
“For the district court’s entry of judgment under
Rule 52(c), we review the district court’s factual findings
for clear error and its legal conclusions de novo.” Intell.
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1312
(Fed. Cir. 2016). “Patent eligibility is a question of law that
may involve underlying questions of fact.” PersonalWeb
Techs. LLC v. Google LLC, 8 F.4th 1310, 1314 (Fed. Cir.
2021). We review de novo a determination that a claim is
not directed to patent-ineligible subject matter. See, e.g.,
CardioNet, 955 F.3d at 1367.
“Whoever invents or discovers any new and useful pro-
cess, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a pa-
tent therefor . . . .” 35 U.S.C. § 101. “The Supreme Court
has identified three types of subject matter that are not pa-
tent-eligible: ‘Laws of nature, natural phenomena, and ab-
stract ideas . . . .’” CardioNet, 955 F.3d at 1367 (quoting
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)).
“The abstract ideas category, the subject matter at issue in
this case, embodies the longstanding rule that an idea of
itself is not patentable.” Id. (cleaned up) (quoting Alice,
573 U.S. at 218). But “an invention is not rendered ineligi-
ble for patent simply because it involves an abstract con-
cept.” Alice, 573 U.S. at 217. Applications of abstract
concepts to a new and useful end are eligible for patent pro-
tection. Id.
The Supreme Court has “articulated a two-step test for
examining patent eligibility.” CardioNet, 955 F.3d
at 1367. “At step one, we consider the claims ‘in their en-
tirety to ascertain whether their character as a whole is di-
rected to excluded subject matter.’ We also consider the
patent’s written description, as it informs our understand-
ing of the claims.” Id. at 1367–68 (citations omitted). “If
the claims are not directed to a patent-ineligible concept
under Alice step [one], the claims satisfy § 101 and we need
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not proceed to the second step.” Id. at 1368 (quotation
marks omitted) (quoting Data Engine Techs. LLC v. Google
LLC, 906 F.3d 999, 1007 (Fed. Cir. 2018)). “If the claims
are directed to a patent-ineligible concept, however, we
next consider Alice step two. In this step, we consider the
elements of each claim both individually and as an ordered
combination to determine whether the additional elements
transform the nature of the claim into a patent-eligible ap-
plication.” Id. (quotation marks and citations omitted).
A
We begin by analyzing claims 3, 16, and 17 of the
’302 patent at Alice step one. Defendants-Cross-Appel-
lants argue the claims are directed to the abstract idea of
gathering and/or receiving blend data and making a calcu-
lation with that data.4 We disagree and hold that
claims 3, 16, and 17 are not directed to an abstract idea.
“At this step, we look to whether the claims focus on a
specific means or method that improves the relevant tech-
nology or are instead directed to a result or effect that itself
is the abstract idea and merely invoke generic processes
and machinery.” PowerBlock Holdings, Inc. v. iFit, Inc.,
146 F.4th 1366, 1371 (Fed. Cir. 2025) (quotation marks
and citation omitted). As the district court concluded here,
claims 3, 16, and 17 of the ’302 patent are “directed to im-
proved systems and methods for blending butane.” See
101 Order at 490.
The ’302 patent’s specification, as well as trial testi-
mony on the state of the art that the district court
4 Defendants-Cross-Appellants argue that claim 31
of the ’629 patent is representative of the claims in the
’302 patent. See Defendants-Cross-Appellants’ Reply Br. 2
n.1. We disagree and note that the district court also did
not treat any claims as representative.
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credited,5 explains the conventional methods of blending
butane at tank farms and the drawbacks of these methods.
See 101 Order at 489–90. The specification then explains
how the patented system and methods are different from
prior manual blending methods, including that (1) “blend-
ing occurs downstream of the gasoline and butane storage
tanks on the tank farm, after the gasoline and butane are
drawn from their storage tanks for dispensing into a tanker
truck, but before the gasoline is actually dispensed to the
tanker truck at the rack,” ’302 patent col. 3 ll. 16–21; and
(2) “a blending apparatus” blends the butane and gasoline
streams at varying blend ratios to achieve a desired vapor
pressure, and the apparatus is “under the continuous con-
trol of a process control unit, which can vary the ratio at
which gasoline and butane are blended to attain a desired
vapor pressure,” id. at col. 3 ll. 21–31. The specification ex-
plains that this “allows for blending the butane and gaso-
line streams to form a blend such that the maximum
allowable vapor pressure is not exceeded and then dispens-
ing the blend at the rack, without having to stir the tank
and certify the vapor pressure of the tank before releasing
it to the rack.” See 101 Order at 490 (citing ’302 patent
col. 10 ll. 33–36, col. 11 ll. 30–42, 50–55). The specification
further lays out four specific improvements this allowed
for, including that “[t]he ratio of butane and-gasoline [sic]
blended can be easily varied and controlled” and “operators
are able to maximize the amounts of butane that they
blend.” ’302 patent col. 3 ll. 44–67.
Improvements over the prior blending methods are suf-
ficiently captured in claim 3, which depends from claims 1
5 As Sunoco pointed out at oral argument, the dis-
trict court ruled on eligibility under Rule 52(c) and made
several fact findings based on the record. See Oral Arg.
at 43:04–44:01, https://oralarguments.cafc.uscourts.gov/
default.aspx?fl=23-1218_01132025.mp3.
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and 2. Claim 3 recites a system “for blending gasoline and
butane at a tank farm” that includes: (1) a butane stream
and a gasoline stream; (2) a tank of gasoline and one of bu-
tane; (3) a processing unit to calculate a blend ratio;
(4) equipment, including a blending unit downstream of
and in fluid connection with the gasoline tank, for blending
the streams at the calculated blend ratio; and (5) a dispens-
ing unit downstream of the blending unit to dispense the
blend at a truck rack. See ’302 patent col. 13 ll. 12–31. Ac-
cordingly, we agree with the district court that claim 3 is
directed to “a specific implementation of a technological im-
provement” for a butane blending system. Chamberlain
Grp., Inc. v. Techtronic Indus. Co., 935 F.3d 1341, 1347
(Fed. Cir. 2019). We hold that the limitations in this claim
provide enough specificity and structure to satisfy § 101.
Indeed, we see this case as analogous to our recent de-
cision in PowerBlock Holdings where we held eligible at Al-
ice step one claims for selectorized dumbbells. PowerBlock
Holdings, 146 F.4th at 1371–73. There, we explained that
even though the claim language was broad, it was still “lim-
ited to a particular type of dumbbell,” went “beyond claim-
ing the ‘broad concept’ of automating a known technique
and provide[d] a sufficiently ‘specific manner of performing’
automated weight stacking,” and was “sufficiently focused
on a specific mechanical improvement.” Id. at 1372–73.
Similarly here, claim 3 is limited to a particular blending
system that goes beyond merely automating conventional
blending techniques by providing a sufficiently specific
manner of blending and is focused on a specific mechanical
improvement. See also, e.g., CardioNet, 955 F.3d at 1368
(holding that the claims “focus on a specific means or
method that improves cardiac monitoring technology; they
are not directed to a result or effect that itself is the ab-
stract idea and merely invoke generic processes and ma-
chinery” (quotation marks and citation omitted)).
On the other hand, we disagree with Defendants-
Cross-Appellants’ contention that claim 3 is analogous to
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the patent at issue in University of Florida Research Foun-
dation, Inc. v. General Electric Co., 916 F.3d 1363
(Fed. Cir. 2019). The patent at issue there, involving “a
method and system for ‘integrat[ing] physiologic data from
at least one bedside machine,’” sought to “automate ‘pen
and paper methodologies’ to conserve human resources and
minimize errors” and was “a quintessential ‘do it on a com-
puter’ patent.” Univ. of Fla., 916 F.3d at 1366–67 (altera-
tion in original) (citations omitted). As explained above,
claim 3 is different: it claims equipment tanks, a pro-
cessing unit to calculate a blend ratio, a blending unit, a
dispensing unit, and a truck rack, as well as the specific
arrangement that the blending unit is downstream of the
tank. It is directed to an eligible mechanical invention—
i.e., “a concrete thing, consisting of parts, or of certain de-
vices and combination of devices.” SiRF Tech., Inc. v. Int’l
Trade Comm’n, 601 F.3d 1319, 1332 (Fed. Cir. 2010) (quot-
ing In re Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009));
see 35 U.S.C. § 101.
Nor do we agree with Defendants-Cross-Appellants’
view that claim 3 is similar to the claims at issue in Cham-
berlain. In Chamberlain, the specification described a sys-
tem for wirelessly controlling a moveable barrier, such as
a garage door. The claims recited a moveable barrier oper-
ator with a controller, an interface, and a wireless trans-
mitter that sends status information. The claims did not
recite the moveable barrier. We concluded that the as-
serted claims were “directed to wirelessly communicating
status information about a system,” an abstract idea.
Chamberlain, 935 F.3d at 1346–47. We explained that the
claims in Chamberlain were “not limited to a specific im-
plementation of a technological improvement to communi-
cation systems,” “they simply recite[d] a system that
wirelessly communicates status information” instead of us-
ing physical signal paths. Id. at 1347. Claim 3 of the
’302 patent here is distinguishable. Claim 3 recites ele-
ments of a mechanical system including a blending unit
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that physically blends butane and gasoline that is both con-
nected downstream of the butane and gasoline tanks and
upstream of the dispensing unit, which is also configured
to blend butane and gasoline such that the blend has the
desired vapor pressure. Here, claim 3 passes muster at Al-
ice step one, as it is sufficiently focused on a specific me-
chanical improvement to blending butane.
Defendants-Cross-Appellants contend that we should
not consider elements of claims that were invalidated as
anticipated in other court proceedings—i.e., claim 1 of the
’302 patent—and should only consider in our § 101 analy-
sis the limitations added in claims 2 and 3. “We decline
[Defendants-Cross-Appellants’] invitation to read out or ig-
nore limitations in claim [3] here merely because they can
be found in the prior art.” PowerBlock, 146 F.4th at 1373
(citing Diamond v. Diehr, 450 U.S. 175, 188 (1981)). We
emphasize here that “parties and tribunals [should] not . . .
conflate the separate novelty and obviousness inquiries un-
der 35 U.S.C. §§ 102 and 103, respectively, with the step
one inquiry under § 101.” Id. at 1373 n.3.6
Defendants-Cross-Appellants have not made any
meaningful argument that the method claims 16 and 17 of
the ’302 patent are patent-ineligible even if claim 3 is pa-
tent-eligible. See, e.g., Defendants-Cross-Appellants’
Br. 66 (describing claim 3 of the ’302 patent as “more high-
level” than claims 16 and 17). Courts may treat claims the
same regardless of whether they are method or system
6 The district court struck certain evidence regard-
ing the prior art Kerr-McGee system, an order that is not
appealed, and then did not find the remaining excerpts of
the prior art system in the record persuasive in showing
the claimed blending steps were conventional. See 101 Or-
der at 490 n.3. As our analysis is focused on what the lan-
guage of the challenged claims captures, we do not reach
the parties’ dispute over this prior art system.
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claims for the purposes of patent eligibility. See Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.),
687 F.3d 1266, 1277 (Fed. Cir. 2012) (“The equivalence of
the asserted method and system claims is also readily ap-
parent. . . . The only difference between the claims is the
form in which they were drafted. The district court cor-
rectly treated the system and method claims at issue in this
case as equivalent for purposes of patent eligibility under
§ 101.”); cf. Alice, 573 U.S. at 226 (“Put another way, the
system claims are no different from the method claims in
substance. . . . This Court has long warned against inter-
preting § 101 in ways that make patent eligibility depend
simply on the draftsman’s art.” (cleaned up) (citation omit-
ted)). Thus, claims 16 and 17 are directed to eligible sub-
ject matter for the same reasons as claim 3.
Because we conclude under Alice step one that
claims 3, 16, and 17 of the ’302 patent are not directed to
an abstract idea, we do not reach Alice step two. We affirm
the district court’s holding that claims 3, 16, and 17 of the
’302 patent are patent eligible under § 101.
B
We turn next to claims 18, 22, 31, and 32 of the ’629 pa-
tent and start with Alice step one. Defendants-Cross-Ap-
pellants argue that these claims are directed to the
abstract idea of gathering and/or receiving blend data and
making a calculation with that data. Because Sunoco con-
cedes that claim 31 is representative for our § 101 analysis
for the ’629 patent, our analysis focuses on claim 31. Oral
Arg. at 42:18–42:32. Starting with Alice step one, we agree
that claim 31 of the ’629 patent is directed to an abstract
idea.
In contrast to claim 3 of the ’302 patent, claim 31 of the
’629 patent recites “[a] computer-implemented method for
blending a butane stream and a gasoline stream” that in-
cludes: (1) “receiving a first measurement indicating a va-
por pressure . . .”; (2) “calculating a blend rate . . .”;
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(3) “transmitting an instruction to a programmable logic
controller . . .”; and (4) “receiving a second measurement
indicating a vapor pressure . . . .” ’629 patent col. 16 ll. 8–
21. Claim 31 does not recite the step of blending gasoline
and butane; nor does it recite where blending would occur.
Rather, claim 31 recites an algorithm that receives meas-
urements, calculates, and transmits an instruction for ad-
justing a butane stream based on “receiving” and
“calculating” data. We have held similar algorithm and
data-focused claims ineligible. See In re Bd. of Trs. of Le-
land Stanford Junior Univ., 989 F.3d 1367, 1372–73
(Fed. Cir. 2021) (collecting cases and explaining that
“[c]ourts have long held that mathematical algorithms for
performing calculations, without more, are patent ineligi-
ble under § 101.”); PersonalWeb Techs., 8 F.4th at 1317
(“[W]e [have] explained that a process that started with
data, added an algorithm, and ended with a new form of
data was directed to an abstract idea.” (cleaned up) (cita-
tion omitted)).
While the district court determined that this claim is
directed to the improved blending methods based on the
specification, see 101 Order at 491, we disagree. Unlike
claim 3 of the ’302 patent, which recites specific compo-
nents of a system, in a specific order so that butane is
blended at a specific point in the pipeline, and in a specific
manner to capture the invention’s improvements, claim 31
is written at a high level of generality and fails to capture
any specific improvements described in the specification.
For example, claim 31 does not recite if or where in the
pipeline butane is blended with gasoline. At most, the
claim recites an instruction that could be used for blending
and “distributing at a rack.” ’629 patent col. 16 l. 18.
Sunoco argues that the claim involves more than gath-
ering and processing data, and that Defendants-Cross-Ap-
pellants ignore that the claim is specifically about a process
of blending butane with gasoline, which is recited by the
claim’s preamble. Appellant’s Reply Br. 42–43. Sunoco
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warns against “disregard[ing] those express claim ele-
ments [and] proceed[ing] at ‘a high level of abstraction’ that
is ‘untethered from the claim language’ and that ‘overgen-
eraliz[es] the claim.’” Appellant’s Reply Br. 44 (fourth al-
teration in original) (quoting TecSec, Inc. v. Adobe Inc.,
978 F.3d 1278, 1295 (Fed. Cir. 2020)). Sunoco argues that
“the focus of the claim[] is determining the RVP of a flowing
gasoline stream to calculate how much butane can be
added, not the subsequent act or result of blending,” which
is all that is required. Id. (citing Free Stream Media Corp.
v. Alphonso Inc., 996 F.3d 1355, 1363 (Fed. Cir. 2021)).
The claim’s preamble does not save it from abstraction
here. We agree that courts must be vigilant against over
generalizing what a claim is directed to in an Alice analy-
sis. However, “we have treated collecting information, in-
cluding when limited to particular content (which does not
change its character as information), as within the realm
of abstract ideas.” Elec. Power Grp., v. Alstom S.A.,
830 F.3d 1350, 1353 (Fed. Cir. 2016). Here, the claims re-
cite a method “of gathering and analyzing information of a
specified content [in claim 31], then displaying the results
[by generating a report in claim 32], and not any particular
assertedly inventive technology for performing those func-
tions. The[ claims] are therefore directed to an abstract
idea.” Id. at 1354.
Because we hold that claim 31 is directed to an abstract
idea at Alice step one, we move to Alice step two.7 “In this
step, we consider the elements of each claim both individ-
ually and as an ordered combination to determine whether
the additional elements transform the nature of the claim
into a patent-eligible application.” CardioNet, 955 F.3d
at 1368 (citations and quotation marks omitted).
7 The parties did not provide separate arguments
under Alice step two for the various claims on appeal.
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As an initial matter, the district court did not reach Al-
ice step two. Sunoco thus contends that if we reach this
step, we should not analyze it in the first instance but in-
stead remand the issue to the district court. See Appel-
lant’s Reply Br. 59 (citing MyMail, Ltd. v. ooVoo, LLC,
934 F.3d 1373, 1380 (Fed. Cir. 2019)). However, where a
patentee has argued that its claims are eligible under step
two as a matter of law, as Sunoco does here, we have pre-
viously reached step two even when the district court did
not. See Free Stream, 996 F.3d at 1365–66.
Sunoco argues that claim 31 recites an inventive con-
cept at step two because the invention is directed to specific
blending methods, not just automated calculations, that
are “directed to improved systems and methods” that
“blend more gasoline than would be possible with the prior
art.” Appellant’s Reply Br. 60 (emphasis removed) (first
quoting 101 Order at 490, 492; and then citing CosmoKey
Sols. GmbH & Co. KG v. Duo Sec. LLC, 15 F.4th 1091,
1098–99 (Fed. Cir. 2021) (“[C]laims recite an inventive con-
cept by requiring a specific set of ordered steps that go be-
yond the abstract idea . . . and improve upon the prior
art.”)). We disagree.
Here, at Alice step two, we do not discern “an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea
into a patent-eligible [invention].” Alice, 573 U.S. at 221
(quoting Mayo Collaborative Servs. v. Prometheus Lab’ys,
Inc., 566 U.S. 66, 72, 79 (2012)). While we agree that the
invention as disclosed in the specification describes “im-
proved systems and methods” that “blend more gasoline
than would be possible with the prior art,” the focus of our
inquiry is on claim 31. And as discussed above, what is ac-
tually claimed does not capture the improvements de-
scribed elsewhere in the patent. The claim merely recites
a generic method of performing any butane blending (i.e.,
calculating a blend rate after receiving a vapor pressure
measurement and transmitting an instruction adjusting
the flow of the butane stream), albeit done on a computer.
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The claim limitations, analyzed alone and in combination,
fail to add “something more” to “transform” the claimed ab-
stract idea of gathering and/or receiving blend data and
making a calculation into “a patent-eligible [invention].”
See Alice, 573 U.S. at 217, 221.
Because we conclude that claim 31 is ineligible, and the
parties treat it as representative of claims 18, 22, and 32,
we reverse the district court’s holding that
claims 18, 22, 31, and 32 of the ’629 patent are eligible un-
der § 101.
C
Finally, we turn to claim 3 of the ’686 patent and again
start with Alice step one. Defendants-Cross-Appellants ar-
gue the claim is directed to the abstract idea of gathering
and/or receiving blend data and making a calculation with
that data. We disagree.
The ’686 patent does not share a specification with the
other two patents. Instead, the ’686 patent’s specification
describes a method for in-line blending of butane and gas-
oline “at any point along a petroleum pipeline,” ’686 patent
col. 1 ll. 22–25, which allows for “surprising versatility that
can be used to blend butane with petroleum products at
practically any point along a petroleum pipeline, regard-
less of variations in the flow rate of gasoline . . . , the time
of year . . . , or the ultimate destination.” Id. at col. 3
ll. 17–23. The district court highlighted “[o]ne embodiment
[that] includes ‘periodically determining’ the gasoline flow
rate and vapor pressure so that ‘the blend ratio and blend
rate are both periodically recalculated to account for differ-
ences within and among batches in gasoline flow rate and
gasoline vapor pressure.’” 101 Order at 493 (first quoting
’686 patent col. 3 ll. 52–64; and then citing id. at col. 14
ll. 38–44).
The district court held that claim 3 captured the de-
scribed “unconventional methods” of the ’686 patent
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specification because it recited (1) “periodically determin-
ing said gasoline vapor pressure,” (2) a “gasoline flow rate,”
(3) “calculating a blend ratio based upon . . . said gasoline
vapor pressure[ ] and said allowable vapor pressure,”
(4) “‘blending’ the butane and gasoline streams ‘at a blend-
ing unit at said blend ratio to provide a blended gasoline
stream having a blended vapor pressure less than or equal
to said allowable vapor pressure,’” (5) a processing unit
that “generates pulses of flow rate data,” and (6) “another
processing unit that performs the steps of ‘calculating a
blend ratio’ and of ‘calculating a blend rate . . . based upon
said flow rate data.’” 101 Order at 493–94 (alteration and
omissions in original) (quoting ’686 patent col. 15 l. 61–
col. 16 l. 23). We agree and conclude that claim 3 is di-
rected to providing in-line blending notwithstanding differ-
ences within and among batches in gasoline flow rate and
gasoline vapor pressure.
Claim 1, from which claim 3 depends, recites a method
for in-line blending of gasoline and a volatility modifying
agent, batches of different gasoline types, with different
flow rates and vapor pressures, requiring periodic determi-
nations of flow rates and vapor pressures and calculating a
blend ratio. Claim 1 also recites blending the agent stream
and gasoline stream at a blending unit, and claim 3 adds
first and second “information processing unit[s],” the sec-
ond for calculating the flow rate data and the first for cal-
culating blend ratios based on the flow rate data. Based on
this specific claim language as understood in light of the
specification, we conclude that claim 3 is not directed to an
abstract idea. Rather, claim 3 recites specific technological
improvements to address specific problems that existed in
providing in-line blending of gasoline and a volatility mod-
ifying agent.
As we hold that claim 3 is not directed to an abstract
idea at Alice step one, we need not address Alice step two.
Consistent with the specification, the claims are directed
to an improved in-line blending system that allows for
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more “versatility” and for butane and gasoline to be
blended “at any point along a petroleum pipeline.” We thus
affirm the district court’s holding that claim 3 of the
’686 patent is eligible under § 101.
II
Magellan and Powder Springs also contend on cross-
appeal that the district court erred in awarding pre-verdict
supplemental damages to Sunoco for February 2019 to Oc-
tober 2021.
Assessing and computing supplemental damages “is
within the sound discretion of the district court.” Bayer
Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 985
(Fed. Cir. 2021) (citation omitted); Stryker Corp. v. Davol
Inc., 234 F.3d 1252, 1259–60 (Fed. Cir. 2000) (reviewing an
award of supplemental damages for abuse of discretion).
“A district court abuses its discretion by making a clear er-
ror of judgment in weighing relevant factors or in basing
its decision on an error of law or on clearly erroneous fac-
tual findings.” Mentor Graphics Corp. v. Quickturn Design
Sys., Inc., 150 F.3d 1374, 1377 (Fed. Cir. 1998).
Defendants-Cross-Appellants argue that Sunoco
should be held to the damages number it calculated for the
jury at trial—i.e., multiplying the $0.02/gallon royalty rate
times the accused blend volumes through January 2019—
because Sunoco had possession of Defendants-Cross-Appel-
lants’ updated blend volumes through October 2021 prior
to trial. Defendants-Cross-Appellants contend that Sunoco
had ample time after its damages expert’s opinions were
stricken and it received the updated volumes data to at-
tempt to authenticate or admit the data at trial. Defend-
ants-Cross-Appellants argue that the district court’s
assessment that it was “not sure [authentication] efforts
would have been successful” was insufficient to grant
Sunoco damages it had not proven. Defendants-Cross-Ap-
pellants’ Br. 50 (alteration in original) (quoting Damages
Order at *3). We are not persuaded.
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The district court, having witnessed trial where “[t]he
jury awarded Sunoco’s exact damages number” as
“Sunoco’s counsel presented [it]” using the infringing vol-
umes that ended in January 2019, was left with “no doubt
that the jury only considered Defendants’ infringement
through January 2019 when assessing damages.” Dam-
ages Order at *3 (emphasis added) (citation omitted). The
district court then made three observations about the up-
dated blend volume data: (1) this information came in af-
ter fact and expert discovery closed, (2) there was no
witness at trial or within subpoena range through whom
Sunoco could have introduced the new volumes, and
(3) other efforts to remedy an authentication problem may
not have been successful based on Defendants-Cross-Ap-
pellants’ objections practice. Thus, the district court deter-
mined that Sunoco “had no practical means of presenting
these new volumes to the jury,” and “[b]ecause the jury only
compensated Sunoco for infringement through January
2019, . . . supplemental damages are necessary to properly
compensate Sunoco.” Id. at *3–4. Defendants-Cross-Ap-
pellants have not shown the district court made a clear er-
ror in judgment, of law, or in fact finding in reaching this
conclusion, and we will not second guess the district court’s
assessment of the proceedings before it. Accordingly, we
affirm the district court’s award of supplemental damages.
S UNOCO ’S D IRECT APPEAL
As we affirm the district court’s determination that
claims 3, 16, and 17 of the ’302 patent and claim 3 of the
’686 patent are eligible under § 101, supra, we now turn to
Sunoco’s direct appeal. Sunoco challenges a litany of the
district court’s holdings on damages, arguing that the
court: (1) abused its discretion by excluding Dr. Ugone’s
opinions relying on Sunoco’s unapportioned BSAs;
(2) abused its discretion by excluding Dr. Ugone’s lost prof-
its opinions; (3) abused its discretion by excluding
Dr. Ugone’s reasonable royalty opinions; (4) erred by not
instructing the jury on lost profit damages and by
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prohibiting Sunoco from asking the jury for an intermedi-
ate royalty based on Sunoco’s BSAs and Buckeye License;
(5) abused its discretion by excluding Dr. Ugone’s lost op-
portunity cost opinion against Powder Springs; and
(6) abused its discretion by not awarding enhanced dam-
ages for Defendants-Cross-Appellants’ willful infringe-
ment. Sunoco also challenges the district court’s JMOL of
no infringement as to claims 16 and 17 of the ’302 patent
and claims 18 and 22 of the ’629 patent.
“For issues not unique to patent law, we apply the law
of the regional circuit in which this appeal would otherwise
lie.” i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 841
(Fed. Cir. 2010). This includes evidentiary rulings. Tokai
Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1364 (Fed. Cir.
2011). The Third Circuit applies an abuse-of-discretion
standard to review evidentiary rulings, reversing decisions
resting “upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.”
Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008)
(quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir. 1999)).
“[A] trial judge acts as a ‘gatekeeper’ to ensure that ‘any
and all expert testimony or evidence is not only relevant,
but also reliable.’” Id. (quoting Kannankeril v. Terminix
Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)).
“We review a district court’s decision on [patent] dam-
ages for ‘an erroneous conclusion of law, clearly erroneous
factual findings, or a clear error of judgment amounting to
an abuse of discretion.’” Juicy Whip, Inc. v. Orange Bang,
Inc., 382 F.3d 1367, 1370 (Fed. Cir. 2004) (quoting Rite–
Hite Corp. v. Kelley Co., 56 F.3d 1538, 1543 (Fed. Cir. 1995)
(en banc)). When we “review a damages determination, the
clearly erroneous standard applies to the review of the
amount of damages, while the abuse of discretion standard
applies to the review of the methodology chosen to compute
damages.” In re Cambridge Biotech. Corp., 186 F.3d 1356,
1369 (Fed. Cir. 1999). “We review a district court’s decision
regarding enhanced damages for an abuse of discretion.”
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Ironburg Inventions Ltd. v. Valve Corp., 64 F.4th 1274,
1300 (Fed. Cir. 2023).
We review “the legal sufficiency of jury instructions on
an issue of patent law without deference to the district
court.” DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304
(Fed. Cir. 2006) (en banc). “A jury verdict will be set aside
only if the jury instructions were ‘legally erroneous’ and the
‘errors had prejudicial effect.’” Ericsson, Inc. v. D–Link
Sys., Inc., 773 F.3d 1201, 1225 (Fed. Cir. 2014) (quoting
Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1363
(Fed. Cir. 2004)).
“We review denial of post-trial motions for JMOL and
new trial under regional circuit law.” Finjan, Inc. v. Secure
Computing Corp., 626 F.3d 1197, 1202 (Fed. Cir. 2010) (ci-
tations omitted). “In the Third Circuit, review of denial of
JMOL is plenary.” Id. (citations omitted). JMOL is
“‘granted only if, viewing the evidence in the light most fa-
vorable to the nonmovant and giving it the advantage of
every fair and reasonable inference, there is insufficient ev-
idence from which a jury reasonably could find’ for the non-
movant.” TransWeb, LLC v. 3M Innovative Props. Co.,
812 F.3d 1295, 1301 (Fed. Cir. 2016) (quoting Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
Infringement is a question of fact, “reviewed for substantial
evidence when tried to a jury.” ACCO Brands, Inc. v. ABA
Locks Mfrs. Co., 501 F.3d 1307, 1311 (Fed. Cir. 2007).
I
We turn first to Sunoco’s assertion that the district
court erred by striking Dr. Ugone’s opinions relying on
Sunoco’s BSAs as comparable licenses from which to adopt
the BSA royalty rate and royalty base—i.e., a 40/60 to
50/50 profit-share on the extra gasoline created—without
further apportionment. Sunoco asserts its expert’s opin-
ions were erroneously struck for two reasons.
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First, Sunoco argues that because its BSAs “are the
epitome of the ‘comparable’ licenses,” they “may be the
most effective method of estimating the asserted patent’s
value” and need not be apportioned. Appellant’s Br. 23–24
(first quoting LaserDynamics, 694 F.3d at 79; and then
quoting Commonwealth Sci. & Indus. Rsch. Organisation
v. Cisco Sys., Inc., 809 F.3d 1295, 1303–04 (Fed. Cir.
2015)). Sunoco argues that any question over “[t]he degree
of comparability of the . . . license agreements[,] as well as
any failure on the part of [Sunoco’s] expert to control for
certain variables[,] are factual issues best addressed by
cross examination and not by exclusion.” Appellant’s
Br. 24 (first and third alterations and omission in original)
(quoting ActiveVideo Networks, Inc. v. Verizon Commc’ns,
Inc., 694 F.3d 1312, 1333 (Fed. Cir. 2012)). Sunoco com-
pares this case to Commonwealth to argue that it was an
abuse of discretion to exclude Dr. Ugone’s opinions because
the BSAs tracked actual marketplace negotiations over
sharing the profits from Sunoco’s patented inventions.
In the alternative, Sunoco argues that it was an abuse
of discretion to exclude Dr. Ugone’s opinions under Vectura
Limited v. GlaxoSmithKline LLC, 981 F.3d 1030 (Fed. Cir.
2020), which explains that prior licenses can have “built-in
apportionment” sufficient to meet this court’s require-
ments. Appellant’s Br. 26 (citing 981 F.3d at 1039–42).
Sunoco argues that because negotiators for its “BSAs rec-
ognized the only thing that prospective licensees needed
was rights to Sunoco’s patents, and settled upon on [sic] a
royalty rate and base combination that embodied the mar-
ket’s value of Sunoco’s patents,” Appellant’s Br. 27–28, “ap-
portionment principles had already been negotiated into
the BSA methodology.” Appellant’s Br. 28–29.
We are not persuaded by either argument. While
Sunoco attempts to frame its BSAs as only accounting for
the value of its patents, it is undisputed that the BSAs pro-
vide Sunoco’s customers with many services and proprie-
tary rights beyond patent rights. These include
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(1) designing, engineering, constructing, and maintaining
the blending systems; (2) providing regulatory oversight
support; (3) providing maintenance and support services;
(4) providing risk management services; (5) providing
other customer services; (6) providing hedging services on
butane; and (7) allowing the use of its unclaimed, proprie-
tary blending algorithm. See, e.g., J.A. 5244; J.A. 5206–08;
J.A. 5222; J.A. 5343 (Meyers Dep. Tr. 141:7–20). Indeed,
evidence from Sunoco itself recognizes that (1) its BSAs
“provide a basket of services to make it as easy as possible
on [its] customers,” J.A. 5237–38 (Meyers Dep. Tr. 53:16–
54:7); (2) offering these services together “is more effi-
cient . . . because [Sunoco] ha[s] the supply and the logis-
tics and the know-how . . . [, and] most of [Sunoco’s] blend
partners recognize [its] expertise in this area,” J.A. 5330–
31 (Collela Dep. Tr. 536:25–537:5); (3) “[t]he results of the
blending, because of [the proprietary] algorithms, . . . was
the selling point,” J.A. 5343 (Meyers Dep. Tr. 139:18–
141:2); and (4) the proprietary algorithm helps blend bu-
tane to a customer’s specification, which is a selling point,
J.A. 5336 (Buchanan Dep. Tr. 70:9–72:22). See also
J.A. 23–24 (district court crediting this evidence).8 None of
the case law cited by Sunoco allows a party to avoid appor-
tionment when it will result in a damages award that ex-
ceeds the value attributable to the infringing features of
the accused product. See, e.g., LaserDynamics, 694 F.3d
at 67 (“[T]he patentee . . . must in every case give evidence
tending to separate or apportion the defendant’s profits
and the patentee’s damages between the patented feature
and the unpatented features, and such evidence must be
reliable and tangible, and not conjectural or speculative.”
(emphasis added) (omission in original) (citation omitted));
8 While not the focus of the parties’ apportionment
dispute here, we note that the BSAs also provide a license
to other patents in Sunoco’s butane blending portfolio in
addition to the asserted patents. See J.A. 5206–07.
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Commonwealth, 809 F.3d at 1301 (“Consequently, to be ad-
missible, all expert damages opinions must separate the
value of the allegedly infringing features from the value of
all other features.”). In view of the largely undisputed rec-
ord evidence showing that the BSAs encompass more than
just the value of the asserted patents, the district court did
not abuse its discretion in excluding Dr. Ugone’s opinions
that were premised on using the total profit-share from the
unapportioned BSAs as unreliable under our precedent.
This conclusion accords with our prior decision in U.S.
Venture II, where we held that a different district court did
not err in refusing to grant Sunoco (1) lost profit damages
or (2) a reasonable royalty rate based on its unapportioned
BSAs because the BSAs “do not accurately reflect the value
of the patented invention.” 32 F.4th at 1180. There, we
noted that Sunoco’s “[BSAs] reflect a bundle of goods and
services beyond just the patented invention—e.g., the pur-
chase and sale of butane, equipment maintenance and
monitoring, and a license to more than just the patented
technology.” Id. (citation omitted).
We disagree, however, with Defendants-Cross-Appel-
lants’ contention that Sunoco is collaterally estopped from
arguing that its damages should be tied to the unappor-
tioned BSAs. Collateral estoppel applies when “(1) a prior
action presents an identical issue; (2) the prior action actu-
ally litigated and adjudged that issue; (3) the judgment in
that prior action necessarily required determination of the
identical issue; and (4) the prior action featured full repre-
sentation of the estopped party.” VirnetX Inc. v. Apple Inc.,
909 F.3d 1375, 1377 (Fed. Cir. 2018) (quoting Stephen
Slesinger, Inc. v. Disney Enters., Inc., 702 F.3d 640, 644
(Fed. Cir. 2012)). At a minimum, we are unpersuaded that
Defendants-Cross-Appellants can show factor one is satis-
fied here. First, our prior decision in U.S. Venture II
stemmed from different infringement acts against a differ-
ent defendant. Second, that decision was also on appeal
from a bench trial where the district court, acting as a fact
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finder, credited the defendant’s expert’s opinions over
Dr. Ugone’s opinions, which presents a different legal
standard than the case here, where the district court was
acting as a gatekeeper to admissibility prior to a jury trial.
See Kroy IP Holdings, LLC v. Groupon, Inc., 127 F.4th
1376, 1380 (Fed. Cir. 2025) (“Collateral estoppel generally
does not apply when the second action involves application
of a different legal standard.”).
II
We next turn to Sunoco’s challenge to the district
court’s exclusion of Dr. Ugone’s lost profits opinions.9
Sunoco presents five arguments on appeal for why the dis-
trict court abused its discretion in excluding Dr. Ugone’s
lost profits opinions: (1) Dr. Ugone established a prima fa-
cie case for lost profits under the Panduit factors; (2) under
Mentor, apportionment is satisfied when the first two Pan-
duit factors are established; (3) Dr. Ugone presented
enough evidence in support of his opinions that Sunoco’s
patents were the key drivers of demand for Sunoco’s BSAs
to go to the jury; (4) Dr. Ugone established that apportion-
ment was not necessary because Sunoco could receive lost
profits on the other BSA services as convoyed sales; and
(5) Dr. Ugone appropriately apportioned Sunoco’s damages
request in his supplemental report. We take each issue in
turn.
A
Sunoco contends that Dr. Ugone established a prima
facie case of “but for” causation for lost profits by opining
on how the Panduit factors were met. As part of these opin-
ions, Dr. Ugone calculated that Sunoco would have aver-
aged a per-gallon profitability that ranged from
$0.25/gallon (from a 40/60 profit-share) to $0.28/gallon
9 Sunoco did not seek lost profits from Powder
Springs. See Appellant’s Br. 31 n.2.
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(from a 50/50 profit-share) but for infringement, resulting
in lost profits of $150.3 to $166.7 million. See J.A. 7503–14
¶¶ 107–16.
“Under the Panduit test, a patentee is entitled to lost
profit damages if it can establish four things: (1) demand
for the patented product; (2) absence of acceptable non-in-
fringing alternatives; (3) manufacturing and marketing ca-
pability to exploit the demand; and (4) the amount of profit
it would have made.” Mentor Graphics Corp. v. EVE-USA,
Inc., 851 F.3d 1275, 1285 (Fed. Cir. 2017) (quoting Panduit
Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152,
1156 (6th Cir. 1978)). “Damages under Panduit are not
easy to prove.” Id. (collecting support).
The district court did not abuse its discretion in strik-
ing Dr. Ugone’s lost profits opinions under the Panduit fac-
tors for the same reasons discussed above related to his
opinion on reasonable royalty and comparable licenses.
Dr. Ugone used the full profit-share of the unapportioned
BSAs to calculate Sunoco’s lost profits. While Sunoco may
be able to show demand for its BSAs, the BSAs are not co-
extensive with the asserted patents and instead encompass
more services and products than the patented inventions.
Thus, there was no prima facie showing under Panduit fac-
tor one—demand for the patented product—or Panduit fac-
tor four—the amount of profit Sunoco would have made—
without apportioning the value of the patents from the
other services.
Nor does the case law relied on by Sunoco compel a dif-
ferent result. In Versata Software, Inc. v. SAP America,
Inc., 717 F.3d 1255 (Fed. Cir. 2013), the patentee’s dam-
ages expert isolated from the sales of the accused product
the value of the patentee’s software product—software that
the parties apparently did not dispute encompassed only
the claimed invention—before separately calculating what
additional revenue streams would follow on from a soft-
ware sale through maintenance and consulting
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agreements. 717 F.3d at 1266–67. Similarly, it does not
appear to have been a dispute in Georgetown Rail Equip-
ment Co. v. Holland L.P., 867 F.3d 1229 (Fed. Cir. 2017),
that the comparable contract used for the lost profit calcu-
lation would include services other than those rendered by
the patented invention. We are not holding that a prima
facie case for lost profits can never be made based on com-
parable licenses that take into account “sound economic
proof confirmed by the historical record” or the sale of other
services. Versata, 717 F.3d at 1267 (citation omitted);
Georgetown, 867 F.3d at 1243; see also Appellant’s Br. 32.
We hold only that, based on the record here, the district
court did not err in requiring Sunoco to separately appor-
tion the other services out from the patented inventions in
its BSAs.
B
Sunoco contends, however, that in proving the first two
Panduit factors, Dr. Ugone satisfied the apportionment re-
quirement for his lost profit opinions under Mentor. But
Mentor does not fit the facts of this case.
Mentor’s unusual facts were “remarkably simple”—in
short, “[t]he jury found, and [the defendant] d[id] not dis-
pute on appeal, that Mentor satisfied all of the Panduit fac-
tors with regard to the sales to Intel for which the jury
awarded lost profits.” 851 F.3d at 1286–87. These facts
included that:
Intel would not have purchased the [defendant’s]
emulator system without the two patented features
and that there were no other alternatives availa-
ble. Despite hearing evidence that there were
many valuable and important features in the emu-
lator system, this jury found that if [defendant]
could not have sold its emulator system with the
two infringing features (Mentor’s patented fea-
tures), Intel would have bought the emulators from
Mentor.
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Id. at 1287. In Mentor, the relevant challenge on appeal
was whether, because the “infringing features were just
two features of [the accused] emulators that comprise[d]
thousands of hardware and software features,” further ap-
portionment was needed. Id.
In our analysis, we acknowledged that “apportionment
is an important component of damages law generally, and
we believe it is necessary in both reasonable royalty and
lost profits analysis.” Id. at 1287–88 (first citing Ericsson,
773 F.3d at 1226 (“Apportionment is required even for non-
royalty forms of damages.”); and then citing VirnetX, Inc.
v. Cisco Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014)
(“No matter what the form of the royalty, a patentee must
take care to seek only those damages attributable to the
infringing features.”)). We then narrowly held (1) that “[i]n
this case, apportionment was properly incorporated into
the lost profits analysis and in particular through the Pan-
duit factors,” and (2) “that on the undisputed facts of this
record, satisfaction of the Panduit factors satisfies princi-
ples of apportionment: Mentor’s damages are tied to the
worth of its patented features.” Id. at 1288. We also em-
phasized that Mentor was “a highly factual case, and [the
defendant] did not appeal any of the jury’s fact findings re-
lating to damages.” Id. at 1289.
There are no undisputed facts on the Panduit factors
here. Indeed, Magellan contests both Panduit factors one
and two. And again, as to factor one, Dr. Ugone did not
start his analysis with demand for the claimed inventions;
instead, he and Sunoco sought to conflate demand for the
claimed inventions with the demand for the BSAs as a
whole. But they cannot start with the demand for undis-
putedly more than the patented inventions—indeed, for an
entire basket of services—to base patent damages on. See,
e.g., VirnetX, 767 F.3d at 1326 (“[A] patentee must take
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care to seek only those damages attributable to the infring-
ing features.”).10
Thus, Dr. Ugone did not reliably show that Sunoco’s
“damages are tied to the worth of its patented features.”
Mentor, 851 F.3d at 1288; see also WesternGeco L.L.C.
v. ION Geophysical Corp., 913 F.3d 1067, 1073 & n.2
(Fed. Cir. 2019) (citing Mentor in a footnote after explain-
ing that “[i]f the application of the Panduit factors does not
result in the separation of profits attributable to the pa-
tented device and the profits attributable to providing
other aspects of the surveys . . . , it appears that apportion-
ment is necessary.”). And while Sunoco argues that the
district court erred in “dismiss[ing] Mentor because Sunoco
was seeking lost profits associated with its BSAs,” as “de-
mand [for the BSAs] is the same demand for the rights to
Sunoco’s patents provided under the BSAs,” Appellant’s
Br. 35, that argument is belied by the record.
C
Sunoco further argues that apportionment was not nec-
essary because Dr. Ugone’s opinion that Sunoco’s patents
were the key drivers of demand for Sunoco’s BSAs under
the entire market value rule was reliable. We disagree.
“The entire market value rule allows for the recovery
of damages based on the value of an entire apparatus con-
taining several features, when the feature patented consti-
tutes the basis for customer demand.” Lucent Techs., Inc.
v. Gateway, Inc., 580 F.3d 1301, 1336 (Fed. Cir. 2009)
(quoting TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 901
10 As to factor two, Magellan points out that following
the jury’s verdict of infringement, Powder Springs switched
to a non-infringing manual blending operation, indicating
that there were acceptable non-infringing alternatives.
Defendants-Cross-Appellants’ Br. 36 (citing J.A. 21263–
64; J.A. 21283–85).
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(Fed. Cir. 1986)). We have explained that “[t]he law re-
quires patentees to apportion . . . to a reasonable estimate
of the value of its claimed technology,” unless the patentee
can “establish that its patented technology drove demand
for the entire product.” VirnetX, 767 F.3d at 1329. “[S]trict
requirements limiting the entire market value exception
ensure that [a damages request] ‘does not overreach and
encompass components not covered by the patent.’” Id.
at 1326 (quoting LaserDynamics, 694 F.3d at 70). “If the
product has other valuable features that also contribute to
driving consumer demand . . . then the damages for patent
infringement must be apportioned to reflect only the value
of the patented feature. This is so whenever the claimed
feature does not define the entirety of the commercial prod-
uct.” Power Integrations, 904 F.3d at 978.
Sunoco argues that Dr. Ugone explained that the
granted patent rights were the key driver for the BSAs, see
Appellant’s Br. 37 (citing J.A. 8976–85 ¶¶ 7–19), and relied
on fact witness testimony from Sunoco personnel that in-
cluded (1) Sunoco’s former Director of Business Develop-
ment James Myers’s testimony that “I don’t think we have
a business without those patents,” and that “a hundred
percent of our income, in my opinion, probably is related to
those patents,” J.A. 8984 ¶ 18(a); (2) Myers’s testimony
that he believed Phillips 66 Company entered into a BSA
to ensure that it was not infringing Sunoco’s patents,
J.A. 8981 ¶ 14; and (3) Sunoco’s former Vice President for
Sunoco’s Northeast Operations Joseph Colella’s testimony
that “Kinder Morgan’s license with Sunoco ‘really reflects
the strength of the patents,’” J.A. 8984 ¶ 18(d). See Appel-
lant’s Br. 38–39. Sunoco also points to Dr. Ugone’s reliance
on evidence that Magellan assumed Perimeter Terminal,
LLC’s pre-existing BSA with Sunoco on terms more favor-
able to Sunoco. Appellant’s Br. 39 (citing J.A. 8978–79
¶ 9(b)–(c)). Sunoco contends that this was enough to “‘reli-
ably show’ that the licensed patent rights were the ‘sole’
driver of BSA demand[, which] is a jury question.”
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Appellant’s Br. 39 (citing Marine Polymer Techs., Inc.
v. HemCon, Inc., 672 F.3d 1350, 1360 (Fed. Cir. 2012)).
Thus, Sunoco argues that the district court overstepped its
gatekeeping role in excluding Dr. Ugone’s opinions.
We disagree. “[S]trict requirements limit[] the entire
market value exception.” VirnetX, 767 F.3d at 1326. We
do not believe the district court abused its discretion in re-
quiring Dr. Ugone’s opinions to adhere to those require-
ments to reach the jury; indeed, it is part of the court’s
“gatekeeping obligation” to ensure as “a critical prerequi-
site . . . that the underlying methodology be sound.” Id.
at 1328. And where it is not, “the district court should . . .
exercise[] its gatekeeping authority to ensure that only the-
ories comporting with settled principles of apportionment
[are] allowed to reach the jury.” Id. Here, the district court
determined that Dr. Ugone’s entire market value opinions
were unreliable because they were speculative as to the im-
portance of the patents in driving demand for Sunoco’s
BSAs. The court’s determination was supported by evi-
dence and admissions in the record that features of the
BSAs other than the asserted patents helped drive demand
for Sunoco’s customers to enter into the BSAs. The district
court explained that evidence from Sunoco itself showed
that its services are “valued for their non-patented fea-
tures, such as their expertise and algorithm,” and that even
Dr. Ugone “recognized in formulating his expert opinions
that Sunoco’s algorithm and software are necessary and
valuable components to what Sunoco includes in its
[BSAs].” J.A. 23–24 (citation omitted). The district court’s
determination is not undermined by the above self-serving
testimony from Sunoco’s own witnesses. None of that tes-
timony states that the asserted patents are the sole driver
of demand for the BSAs and Sunoco’s other services have
no value. And, while not required, Sunoco did not present
testimony from the customers whose state of mind Sunoco’s
employees and former employees purported to speak to.
The evidence Sunoco relies on, when viewed against
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Sunoco’s admissions about other meaningful services pro-
vided by the BSAs, is unreliable to show that “the claimed
feature . . . define[s] the entirety of the commercial product
[or service].” Power Integrations, 904 F.3d at 978. Thus,
under the facts of this case, the district court did not abuse
its discretion in holding that apportionment was required.
D
Sunoco also argues that Dr. Ugone established that ap-
portionment was not necessary because Sunoco could re-
ceive lost profits on the other BSA services as convoyed
sales.
“A patentee may recover lost profits on unpatented
components sold with a patented item, a convoyed sale, if
both the patented and unpatented products ‘together were
considered to be components of a single assembly or parts
of a complete machine, or they together constituted a func-
tional unit.’” Am. Seating Co. v. USSC Grp., Inc., 514 F.3d
1262, 1268 (Fed. Cir. 2008) (quoting Rite–Hite, 56 F.3d
at 1550). “Our precedent has not extended liability to in-
clude items that have essentially no functional relationship
to the patented invention and that may have been sold with
an infringing device only as a matter of convenience or
business advantage.” Id. (quoting Rite–Hite, 56 F.3d
at 1550).
As with any damages opinion, however, an expert must
still present a reliable methodology. See Daubert, 509 U.S.
at 589–93. And here, merely declaring certain services to
be convoyed sales did not remove the need to provide guid-
ance for the fact finder on what the value was of the non-
patented products versus the patented product in order for
Dr. Ugone’s opinions to be reliable. Indeed, review of
Dr. Ugone’s reports shows he attributed a value to only two
services as “convoyed sales”: Sunoco’s hedging service and
its butane supply service. J.A. 8972–76 ¶ 5(b). To be sure,
Dr. Ugone also provided general statements like “[u]nder a
lost profits theory of damages, these services would
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represent convoyed sales.” J.A. 8986 ¶ 20. But he provided
no breakdown for what the value of each “convoyed sale”
would be for any of the other various unpatented services
and features provided by the BSAs. While “we note that
we have never required absolute precision in [applying the
principles of apportionment],” VirnetX, 767 F.3d at 1328,
the issue here is that if the jury were to determine that only
some (or none) of the extra services were in a functional
relationship with the patented inventions, it would have no
guidance on how to determine what to award in damages.
As Dr. Ugone provided no way to determine what
amount to award for each service if it was found to be in a
functional unit with the patented inventions versus what
to award for just the patented inventions, the district court
did not abuse its discretion in striking his opinions as un-
reliable.
E
Finally, Sunoco challenges the district court’s decision
striking Dr. Ugone’s apportionment opinions in his supple-
mental report. In his supplemental report, Dr. Ugone as-
signed value for Sunoco’s hedging services at $0.02/gallon
and for its butane supply/certification services at $0.01/gal-
lon. See J.A. 8991–93 ¶ 26(d)–(e); J.A. 8987–88 ¶¶ 22–24.
Dr. Ugone opined that there was no separate value for any
other features of Sunoco’s BSAs apart from its patented
system. The district court determined that this was unre-
liable, as at a minimum, Sunoco’s blending algorithm was
a feature that Sunoco’s own witnesses touted as a selling
point and could not be considered part of the patented sys-
tem because it was an unclaimed trade secret.11 See
11 At oral argument, Sunoco argued that the value of
its blending algorithm was already apportioned out of
Dr. Ugone’s opinions because Dr. Ugone used Defendants-
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J.A. 24–25 (citation omitted). For all the reasons previ-
ously discussed about requiring an appellant to ensure
“damages are tied to the worth of its patented features,”
Mentor, 851 F.3d at 1288, we see no abuse of discretion in
this exclusion.
Moreover, Sunoco and Dr. Ugone were warned that
they needed to apportion the value of the various services
offered in the BSAs relative to the value of the patented
technology and were allowed to supplement Dr. Ugone’s re-
port in order to do so. They disregarded this warning from
the district court and thus risked the exclusion of all of
Dr. Ugone’s opinions.
III
We next turn to Sunoco’s challenge to the district
court’s exclusion of Dr. Ugone’s reasonable royalty opin-
ions. Sunoco argues that, under Vectura and Bio-Rad La-
boratories, Inc. v. 10X Genomics Inc., when an expert’s
opinions parallel the hypothetical negotiation, as Sunoco
contends Dr. Ugone’s opinions do here, no further appor-
tionment is required. See Appellant’s Br. 47–48 (first cit-
ing Vectura, 981 F.3d at 1041; and then citing Bio-Rad
Lab’ys., 967 F.3d 1353, 1376–77 (Fed. Cir. 2020)). We are
not persuaded.
This argument simply repackages Sunoco’s prior argu-
ments for why it need not apportion the BSAs in order to
accurately determine the value of a bare license to its pa-
tents in a hypothetical negotiation. Sunoco seeks to use the
entire profit-share of its BSAs to calculate the royalty rate
for a bare license to the asserted patents. For the reasons
Cross-Appellants’ blend volumes as a royalty base—i.e.,
gasoline and butane blended without Sunoco’s algorithm.
However, Sunoco could not explain how this represented
the value of the algorithm under the BSAs to Sunoco’s cus-
tomers. Oral Arg. at 10:21–11:15.
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described above, the district court did not abuse its discre-
tion in excluding such opinions when Dr. Ugone failed to
properly apportion the value of the patented inventions
from the BSAs to opine on a royalty rate. Nor do the cases
Sunoco relies on compel a different result. See Vectura,
981 F.3d at 1040–41 (presenting “unusual circum-
stance[s]” where even the opposing expert conceded the
prior license was “a very close comparable [license to the
hypothetical negotiation], much closer than you ever find
in a patent case” (citation omitted)); Bio-Rad Lab’ys.,
967 F.3d at 1376–77 (explaining that the expert’s “analysis
could reasonably be found to incorporate the required ap-
portionment”).
IV
We next turn to Sunoco’s other, miscellaneous chal-
lenges to the district court’s decisions on damages. These
include challenges to the district court’s decision to (1) ex-
clude Dr. Ugone’s rebuttal opinions on the Buckeye Li-
cense; (2) not instruct the jury on lost profits based on
Sunoco’s fact witness testimony; and (3) bar Sunoco from
arguing to the jury in closing its comparable license evi-
dence and royalty-rate theories. We are not persuaded that
the district court erred in these rulings.
Whether premised on opinions from Dr. Ugone or on
fact witness testimony, these challenges still stem from the
same issue that has been fatal to Sunoco’s other challenges
to the district court’s damages decisions. First, Dr. Ugone
and Sunoco were prohibited “from arguing that . . . the full
value of the Buckeye license is attributable solely to the
patents,” J.A. 15978 (Hearing Tr. 33:4–13)—i.e., where the
“full value” would include Sunoco’s 30 percent of the profits
stemming from its agreement with Texon that Sunoco
would receive 60 percent of Texon’s 50/50 profit-share from
Buckeye. See Appellant’s Br. 55–56. The district court
thus did not abuse its discretion in excluding such opinions
as “consistent with the Daubert ruling,” J.A. 15978
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(Hearing Tr. 33:4–13), as Sunoco was still seeking damages
based on an unapportioned profit rate.
Second, the district court did not err by not including
Sunoco’s lost profits jury instruction. Sunoco argues that,
even without expert testimony, trial evidence would have
allowed the jury to make any necessary determination, in-
cluding on apportionment, to properly consider Sunoco’s
lost profits. However, whether Sunoco tries to advance its
theory of lost profits through an expert, as we have already
rejected, or through fact witness testimony, apportionment
as to the value of the patented inventions versus the rest
of the services offered in the BSAs was necessary in order
to seek lost profit damages. Such apportionment did not
occur.12 We thus see no error in the district court declining
to include Sunoco’s proposed lost profits instruction in its
jury instructions.
Third, Sunoco complains that the district court improp-
erly barred Sunoco from arguing to the jury “some value
that’s intermediate” between the 40–50 percent profit-
sharing rate in the BSAs and the 30 percent profit rate in
the Buckeye License, as “even if you say here’s a little piece
and here’s a little piece and they’re worth this and this . . .
that’s not apportionment.” J.A. 23229–31 (Trial
Tr. 1461:2–1463:15). The district court thus ruled that
12 Sunoco relies on our case law that a party need not
present expert testimony on damages, including on lost
profits, but can instead rely on lay witness testimony. See
Appellant’s Br. 58–59. This argument misses the mark.
Here, Sunoco’s lost profits theory was already stricken as
unreliable and merely repackaging it through fact witness
testimony does not imbue it with reliability such that the
theory can reach the jury. Our case law allowing lay wit-
ness testimony and juries to determine a damages award
is not a vehicle for a party to avoid an unfavorable Daubert
ruling.
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“the 30 percent is out and the 50 percent is out.”
J.A. 23236–37 (Trial Tr. 1468:16–1469:4). Sunoco con-
tends that this was error, as it prevented Sunoco from pre-
senting to the jury a reasonable royalty theory based on
evaluating the comparability of Sunoco’s prior licenses and
negotiations. Additionally, Sunoco argues, this ruling re-
sulted in a one-sided damages trial where only Defendants-
Cross-Appellants’ $0.02/gallon rate could be argued to the
jury. We disagree. Sunoco was required to apportion its
BSAs under either a lost profits or a reasonable royalty
damages theory. Sunoco’s choice not to undertake such ap-
portionment left it open to having its theories struck and
only Defendants-Cross-Appellants’ damages model being
presented to the jury. It was not an abuse of discretion for
the district court to hold Sunoco to our apportionment case
law nor to the consequences of its own strategic decisions.
V
We next turn to Sunoco’s challenge to the district
court’s exclusion of Dr. Ugone’s lost opportunity cost opin-
ion regarding Powder Springs. Sunoco argues that a new
damages trial on Powder Springs’s infringement is war-
ranted because the district court improperly excluded
Dr. Ugone’s opinion on lost opportunity cost from Powder
Springs’s infringing blending on the Colonial Pipeline up-
stream of Sunoco’s terminals, which was not based on
Sunoco’s BSA methodology. We are not persuaded that the
district court abused its discretion in excluding Dr. Ugone’s
opinion as unreliable.
The district court explained that, while this theory may
not be based on Sunoco’s BSA methodology, “it, too, is un-
reliable because Dr. Ugone failed to apportion the value
lost due to non-infringing manual blending (and, thus,
failed to identify the value lost to infringing automated
blending).” J.A. 25. Sunoco contends that Dr. Ugone did
not need to apportion the value derived from non-infring-
ing manual blending because Dr. Ugone stated in his
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report that, “based upon discussions with Sunoco person-
nel[,] I understand that manual blending would not be fea-
sible into large and active pipelines (such as [Powder
Springs’s] Accused System).” J.A. 7469. Sunoco offers no
other support for this proposition, including no testimony
from a fact witness or technical expert as to the accuracy of
this statement.13 Here, we cannot say the district court
abused its discretion in not crediting a non-technical ex-
pert’s statement as to the feasibility of certain blending
processes. Nor can we say the district court abused its dis-
cretion in finding Dr. Ugone’s methodology unreliable
where he failed to account for the value of potential non-
infringing processes in his opinions.14
13 To avoid a permanent injunction after the jury
found Powder Springs infringed claim 3 of the ’686 patent,
Defendants-Cross-Appellants represented to the district
court, based on sworn witness testimony, that Powder
Springs switched its operation over to a manual blending
process. See J.A. 21263–65; J.A 21283–84.
14 Sunoco also argues that the district court abused
its discretion by addressing an argument raised for the
first time in Defendants-Cross-Appellants’ Daubert reply
briefing to exclude Dr. Ugone’s lost opportunity cost opin-
ion. See Appellant’s Br. 54. But prior to Daubert briefing,
Sunoco merely presented lost opportunity cost as part of
Dr. Ugone’s opinions on Powder Spring’s bargaining posi-
tion in a hypothetical negotiation, not as an affirmative,
standalone damages theory. See J.A. 7431–33; J.A. 7558–
60 ¶¶ 177–78; see also J.A. 25 (the district court noting that
it is reaching this issue because it is merely “assuming ar-
guendo that Dr. Ugone is offering what Sunoco calls a ‘lost
opportunity cost opinion’” (emphasis added) (citation omit-
ted)). We therefore will not fault the district court for ad-
dressing Sunoco’s new damages theory when it arose.
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VI
We now turn to Sunoco’s challenge to the district
court’s decision not to award enhanced damages for De-
fendants-Cross-Appellants’ willful infringement. Sunoco
contends that the district court abused its discretion by im-
properly reweighing evidence and made its own findings
that contradicted the jury’s findings. We disagree.
The district court thoroughly analyzed each Read15 fac-
tor, determining that five factors weighed against enhance-
ment, three factors weighed in favor of enhancement, and
one factor was neutral. Damages Order at *1–3. While
Sunoco takes issue with how the district court weighed cer-
tain factors against it, it is not our role as the reviewing
court to reweigh the evidence. See Ecolab, Inc. v. FMC
Corp., 569 F.3d 1335, 1352 (Fed. Cir. 2009) (explaining we
only find an abuse of discretion “on a showing that the
court made a clear error of judgment in weighing relevant
factors” (emphasis added)); Nutrinova Nutrition Special-
ties & Food Ingredients GmbH v. Int’l Trade Comm’n,
224 F.3d 1356, 1359 (Fed. Cir. 2000) (“[E]ven if we might
have drawn some inferences from the facts differently,
none of which we are inclined to do, that is not the role of
an appellate court.”).
15 The Read factors include: (1) whether the in-
fringer deliberately copied the ideas or design of another;
(2) whether the infringer, when he knew of the other’s pa-
tent protection, investigated the scope of the patent and
formed a good-faith belief that it was invalid or that it was
not infringed; (3) the infringer’s behavior as a party to the
litigation; (4) defendant’s size and financial condition;
(5) closeness of the case; (6) duration of defendant’s miscon-
duct; (7) remedial action by the defendant; (8) defendant’s
motivation for harm; and (9) whether defendant attempted
to conceal its misconduct. See Read, 970 F.2d at 827.
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Nor are we persuaded by Sunoco’s contention that the
district court replaced the jury’s findings with its own. For
example, Sunoco points to the district court’s analysis on
factor one. Sunoco argues that the “the jury had substan-
tial evidence that Magellan copied Texon’s systems” and
that “the jury’s presumed findings” were that copying oc-
curred, Appellant’s Br. 66–67, and the district court erred
by finding that the evidence of discussions between Magel-
lan and Texon did not show copying and instead there was
record evidence that Magellan had internal automated
blending systems that predated its discussions with Texon.
Damages Order at *1. But our case law emphasizes that
“[w]illfulness and enhancement are separate issues,” Iron-
burg, 64 F.4th at 1295, and that “an award of enhanced
damages does not necessarily flow from a willfulness find-
ing,” Presidio Components, Inc. v. Am. Tech. Ceramics
Corp., 875 F.3d 1369, 1382 (Fed. Cir. 2017). In reviewing
the district court’s analysis on each factor and overall
weighing of the factors, we see no contradictions between
the district court upholding the jury’s willfulness verdict
and determining that enhanced damages were not war-
ranted here.
Nor are we persuaded by Sunoco’s argument that the
district court legally erred in its analysis of factors three
and five under Halo Electronics, Inc. v. Pulse Electronics,
Inc., 579 U.S. 93 (2016). Sunoco argues that Halo rendered
the district court’s findings that “Defendants acted reason-
ably and in good faith in pursuing their defenses” and that
the case “was relatively close,” Damages Order at *2, “ir-
relevant absent proof Defendants knew of and acted on
their trial defenses before infringing.” Appellant’s Br. 67
(citing Halo, 579 U.S. at 105). But Halo does not stand for
this proposition. Instead, Halo rejected the test laid out in
In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir.
2007), which required a threshold finding of objective reck-
lessness on the part of the infringer, in favor of a less rigid
standard granting substantial discretion to district courts
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in determining whether to award enhanced damages. In
this context, the Court noted how under Seagate, bad ac-
tors could escape enhanced damages “by making disposi-
tive the ability of the infringer to muster a reasonable (even
though unsuccessful) defense at the infringement trial.
The existence of such a defense insulates the infringer from
enhanced damages, even if he did not act on the basis of
the defense or was even aware of it.” Halo, 579 U.S. at 105.
In rejecting Seagate, the Supreme Court explained that
district courts are permitted “to exercise their discretion in
a manner free from the inelastic constraints of the Seagate
test.” Id. at 106. And “[a]s with any exercise of discretion,
courts should continue to take into account the particular
circumstances of each case in deciding whether to award
damages, and in what amount.” Id. Nowhere does Halo
lay out the strict test Sunoco proposes that would require
a district court to ignore an infringer’s behavior as a party
to the litigation or the closeness of the case unless the de-
fendant could also prove it knew of its litigation defenses
at the time of infringement.
We decline to second guess the district court’s weighing
of the Read factors. As we see no clear error in the district
court’s weighing of the evidence or any legal error in its
analysis, we determine that the court did not abuse its dis-
cretion in declining to award enhanced damages for De-
fendants-Cross-Appellants’ willful infringement.16
16 Sunoco also argues that it is highly relevant to the
enhanced damages analysis that the jury’s damages award
amounted to only 2 percent of Defendants-Cross-Appel-
lants’ profits from their infringing systems. However, as
explained above, the ultimate damages award was limited
to Defendants-Cross-Appellants’ proposed royalty rate in
part due to Sunoco’s failure to propose an apportioned dam-
ages model. We are thus unpersuaded that any disparity
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VII
Finally, we turn to Sunoco’s challenge to the district
court’s JMOL that claims 16 and 17 of the ’302 patent and
claims 18 and 22 of the ’629 patent were not infringed.17
Sunoco argues that the district court erred in granting
JMOL because (1) Magellan failed to move under Federal
Rule of Civil Procedure 50(a) on the “transmitting” or “re-
ceiving” limitation arguments it raised in its Federal Rule
of Civil Procedure 50(b) motion; and (2) the only evidence
addressing these limitations came from Sunoco’s infringe-
ment expert, and such unrebutted testimony is substantial
evidence to support the jury verdict.
As to Sunoco’s contention that Magellan failed to raise
the relevant arguments from its Rule 50(b) motion in its
Rule 50(a) motion, Sunoco has forfeited this argument.
Under Third Circuit law, when a party does not raise this
type of forfeiture argument in response to a Rule 50(b) mo-
tion before the district court, the party forfeits that argu-
ment for appeal. Williams v. Runyon, 130 F.3d 568, 572
(3d Cir. 1997) (“[W]here a party d[oes] not object to a mo-
vant’s Rule 50(b) motion specifically on the grounds that
the issue was waived by an inadequate Rule 50(a) motion,
the party’s right to object on that basis is itself waived.”).
Sunoco thus forfeited this argument for appeal.18
between the damages award and Defendants-Cross-Appel-
lants’ profits “reflects such a serious error in judgment that
the corresponding failure to enhance damages could only
be an abuse of discretion.” Appellant’s Br. 69.
17 Powder Springs was only found to infringe claim 3
of the ’686 patent, thus this issue applies only to Magellan.
18 After oral argument to the panel, Sunoco filed a let-
ter with our court attaching an email Sunoco sent the dis-
trict court after argument on the JMOL motions below,
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As to Sunoco’s argument on the merits, while it may be
true that only Sunoco’s expert testified as to these limita-
tions, review of the record shows that Sunoco’s expert’s tes-
timony on these limitations is limited. See J.A. 22347–48
(Trial Tr. 579:16–580:25); J.A. 22358–62 (Trial Tr. 590:25–
594:7). He testified that the accused products perform
(1) the “receiving” step “by virtue of programming in or in-
putting into the equation the vapor pressure of the butane,”
which was the baked-in number of 52 psi, J.A. 22347–48
(Trial Tr. 579:16–580:5), and (2) the “transmitting” step
because “the equation utilizes the butane vapor pressure,”
J.A. 22359–60 (Trial Tr. 591:24–592:5). This testimony
does not explain to the jury how an equation that uses a
known, baked-in butane vapor pressure receives or trans-
mits that butane vapor pressure in accordance with the
claimed limitation. Sunoco’s expert merely relied on the
knowledge requirement that met other claim limitations.
Such conclusory testimony on the “receiving” and
which raised Magellan’s failure to argue the “transmitting”
or “receiving” limitation arguments in its Rule 50(a) mo-
tion. See ECF No. 67. However, Sunoco did not raise this
issue in its briefing on the JMOL motions, it did not raise
it at the hearing on the JMOL motions, and it did not even
raise it in the first letter it sent to the district court after
the hearing; it only raised it in a post-hearing reply letter.
Cf. D. Del. LR 7.1.3(c)(2) (“The party filing the opening
brief shall not reserve material for the reply brief which
should have been included in a full and fair opening brief.”).
Furthermore, there is no indication that the district court
was apprised of this argument, especially as the district
court (1) addressed Sunoco’s first post-hearing letter about
an improper claim construction argument, see Infringe-
ment Order at 479 n.3, and (2) addressed a different forfei-
ture argument in the same order, id. at 480. We will not
fault the district court when a party has been this delin-
quent in raising an argument.
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“transmitting” limitations was not sufficient to support a
jury verdict of infringement. Thus, we see no error in the
district court’s JMOL of no infringement.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the district court’s decision on each damages issue
in the direct- and cross-appeal. We also affirm the district
court’s decision granting judgment as a matter of law of no
infringement as to claims 16 and 17 of the ’302 patent and
claims 18 and 22 of the ’629 patent. As for the district
court’s order under Rule 52(c) on eligibility, we affirm the
court’s holding that claims 3, 16, and 17 of the ’302 patent
and claim 3 of the ’686 patent are eligible under § 101 and
reverse the court’s holding that claims 18, 22, 31 and 32 of
the ’629 patent are eligible under § 101.
AFFIRMED-IN-PART, REVERSED-IN-PART
COSTS
No costs.
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