Deere & Company v. Agco Corp., Precision Planting, LLC

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEERE & COMPANY,
Plaintiff-Appellant
v.
AGCO CORP., PRECISION PLANTING, LLC,
Defendants-Appellees
______________________
2023-1811
______________________
Appeal from the United States District Court for the
District of Delaware in Nos. 1:18-cv-00827-CFC-JLH, 1:18-
cv-00828-CFC-JLH, Chief Judge Colm F. Connolly.
______________________
Decided: January 24, 2025
______________________
J OHN C. O'QUINN, Kirkland & Ellis LLP, Washington,
DC, argued for plaintiff-appellant. Also represented by
WILLIAM H. B URGESS; N ATHAN S. MAMMEN, Snell & Wil-
mer, LLP, Washington, DC.
MICHAEL J ENNINGS SUMMERSGILL, Wilmer Cutler Pick-
ering Hale and Dorr LLP, Boston, MA, argued for defend-
ants-appellees. Also represented by J ORDAN LAWRENCE
HIRSCH , RICHARD WELLS O'N EILL; HEATH B ROOKS, Wash-
ington, DC.
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DEERE & COMPANY v. AGCO CORP . 2
______________________
Before P ROST, TARANTO, and CHEN, Circuit Judges.
P ROST, Circuit Judge.
Deere & Co. (“Deere”) sued AGCO Corp. and Precision
Planting, LLC (collectively, “AGCO”) for infringement of
U.S. Patent Nos. 8,813,663 (“the ’663 patent”) and
9,699,955 (“the ’955 patent”). At trial, the jury found that
AGCO did not infringe Deere’s patents. The district court
denied Deere’s post-trial motion for judgment as a matter
of law (“JMOL”) on infringement and a new trial on in-
fringement. Deere & Co. v. AGCO Corp., 659 F. Supp. 3d
418 (D. Del. 2023) (“Post-Trial Opinion”). Deere appeals,
and we affirm.
B ACKGROUND
I
Deere’s patents relate to high-speed agricultural plant-
ing technology and methods for planting seeds. Claim 1 of
the ’663 patent is illustrative and recites:
A seeding machine, comprising:
a seed meter having a metering disk with a plural-
ity of apertures in a circular array adapted to ad-
here seeds to the metering disk to move the seeds
along a seed path as the metering disk rotates;
a seed delivery system associated with said seed me-
ter, said seed delivery system including:
a housing for seed from said metering disk,
the housing having a lower opening
through which seed is discharged;
a single endless member within said hous-
ing disposed around a first drive pulley and
a second idler pulley, said endless member
engaging seed from the seed meter and
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DEERE & COMPANY v. AGCO CORP . 3
moving the seed to said lower opening
where seed is discharged from said hous-
ing; and
a loading wheel engaging seeds adhered to
the metering disk and moving along the
seed path and guiding the seed into the sin-
gle endless member whereby the single
endless member moves the seed to the
lower opening.
’663 patent claim 1 (emphasis added).
The ’955 patent is part of the same patent family as the
’663 patent. Claim 20 of the ’955 patent, which depends
from claims 16 and 19, claims a “method of delivering a
seed.”
II
Deere sued AGCO for infringement of the ’633 and ’955
patents, as well as other patents not at issue on appeal.
The accused products relevant to this appeal are AGCO’s
SpeedTube and vSet2 products and AGCO planters that
contain the SpeedTube and vSet2 (collectively, “the ac-
cused products”). At the claim-construction hearing, the
district court construed the seed-delivery-system terms1
“to include capturing of the seed and the delivery [to] dis-
charge.” J.A. 38152 (152:10–11). The district court also
rejected AGCO’s disclaimer argument and declined to “fur-
ther instruct the jury that Deere has disclaimed systems
with [a] gravity drop.” J.A. 38150 (150:13–17); J.A. 38166
(166:2–5). At the conclusion of the hearing, the district
court ordered Deere to draft a “proposed order on the terms
1 For simplicity’s sake, “seed-delivery-system terms”
refer to the “seed delivery system” and “method of deliver-
ing a seed” limitations in claim 1 of the ’663 patent and
claim 20 of the ’955 patent.
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DEERE & COMPANY v. AGCO CORP . 4
[the district court] ha[d] construed.” J.A. 38215 (215:6–8).
The order Deere prepared, and that the district court sub-
sequently signed and entered, stated in bold that the seed-
delivery-system terms mean “apparatus / system /
method that removes seed from the seed meter by
capturing the seed and then delivers it to a dis-
charge position.” J.A. 125 (emphasis in original). In the
next line and notably not bolded, the order stated, “No dis-
claimer of a seed delivery apparatus / system / method that
allows for seeds to drop by gravity between the seed meter
and discharge.” J.A. 125.
The case went to trial, and the jury returned a verdict
that AGCO did not infringe claim 1 of the ’663 patent or
claim 20 of the ’955 patent. Because the jury found that
AGCO did not infringe the asserted claims, the final jury
instructions and verdict form instructed the jury to not re-
turn a verdict on the validity of the asserted claims.
After trial, Deere moved for JMOL on infringement, or,
at the very least, a new trial on infringement. The district
court deemed Deere’s JMOL on infringement forfeited,2
but it also denied the motion on the merits and denied
Deere’s motion for a new trial. Post-Trial Opinion, 659 F.
Supp. 3d at 439–51.3 The district court then entered final
judgment. J.A. 1.
2 While the district court used the word “waived” in
its opinion, see, e.g., Post-Trial Opinion, 659 F. Supp. 3d at
439–40, we understand it to have been referring to the doc-
trine of forfeiture. See In re Google Tech. Holdings LLC,
980 F.3d 858, 862 (Fed. Cir. 2020). We will use “forfeiture”
or “forfeited” instead of “waiver” or “waived” in this opin-
ion.3 The district court also resolved Deere’s other post-
trial motions not relevant to this appeal. See Post-Trial
Opinion, 659 F. Supp. 3d at 450–51.
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DEERE & COMPANY v. AGCO CORP . 5
Deere timely appealed the district court’s denial of its
motions for a new trial and JMOL on infringement. We
have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
We review a district court’s procedural rulings under
the regional circuit’s law. MLC Intell. Prop., LLC v. Micron
Tech., Inc., 10 F.4th 1358, 1367 (Fed. Cir. 2021). Here, un-
der Third Circuit law, we review the denial of the motion
for a new trial for abuse of discretion. Pac. Biosciences of
Cal., Inc. v. Oxford Nanopore Techs., Inc., 996 F.3d 1342,
1352 (Fed. Cir. 2021); see also Jester v. Hutt, 937 F.3d 233,
238 (3d Cir. 2019). “Under Third Circuit law, a district
court should grant a new trial only if the jury’s verdict is
against the great weight of evidence and either is a miscar-
riage of justice or cries out to be overturned.” Vectura Ltd.
v. GlaxoSmithKline LLC, 981 F.3d 1030, 1035 (Fed. Cir.
2020) (citing Leonard v. Stemtech Int’l Inc., 834 F.3d 376,
386 (3d Cir. 2016)). The Third Circuit reviews a district
court’s denial of a motion for JMOL de novo. Pac. Biosci-
ences, 996 F.3d at 1349–50; see also Pitts v. Delaware, 646
F.3d 151, 155 (3d Cir. 2011).
Deere raises two main issues on appeal. First, Deere
argues that the district court erred in denying its motion
for a new trial on infringement. Second, Deere argues that
the district court improperly denied its JMOL on infringe-
ment. We address each issue in turn.
I
We begin with Deere’s challenge to the district court’s
denial of its motion for a new trial on infringement. Deere
offers three main arguments: (1) that the noninfringement
verdict is against the weight of the evidence; (2) that the
district court’s exclusion of AGCO’s U.S. Patent No.
8,985,037 (“the ’037 patent”) was prejudicial error; and
(3) that the district court’s mid-trial claim construction
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DEERE & COMPANY v. AGCO CORP . 6
rulings were erroneous. None of these arguments are per-
suasive.
A
With respect to the first argument, although Deere ar-
gues that the noninfringement verdict is against the
weight of the evidence, the district court did not abuse its
discretion in concluding otherwise.
AGCO presented ample evidence that the accused
products remove the seeds not by capturing them (as the
asserted claims require), but rather, by projecting and ac-
celerating them. For example, AGCO’s expert testified
about the removal of seeds from the accused products, in-
cluding showing the jury a slowed-down version of the ac-
cused products in operation. See, e.g., J.A. 40994–96
(994:16–996:7); J.A. 50120 (testing video). AGCO’s expert
testified that “the seeds are removed by projecting and ac-
celerating. They’re not removed by being captured.” J.A.
40995–96 (995:25–996:1); see also J.A. 40995 (995:16–18)
(“You’ll see that one [feeder wheel] contacts, and then the
next [feeder wheel] contacts. And then they are projected
through initially into an open area right below the feeder
wheels.”). AGCO’s expert also testified that, during re-
moval of the seeds, a seed’s speed increases from “1 mile
per hour up to 9 miles per hour,” J.A. 41000 (1000:3), and
the entire acceleration and projection of the seed takes be-
tween 0.003 and 0.006 seconds, J.A. 40996 (996:11–16).
AGCO’s lead SpeedTube engineer, Ian Radtke, also tes-
tified that the seeds are removed by projecting and acceler-
ating them toward the flighted belt. In addition to giving
a live demonstration on how the SpeedTube and vSet2 op-
erates, J.A. 40872–73 (872:17–873:25), Mr. Radtke testi-
fied that the seeds are accelerated toward the flighted belt
to prevent damaging the seeds:
Q. Why did you want to accelerate seeds into the
belt?
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DEERE & COMPANY v. AGCO CORP . 7
A. The -- so to -- to describe the situation, the seed
meter, the vacuum seed meter disk is turning quite
slowly relative to the speed of the belt. And so with
that wide disparity in speed, because that seed’s
approaching very slowly, that first initial contact
with the belt can be quite violent and erratic. And
we learned that if you accelerate the speed prior to
that first contact, that’s a much more effective way
to get the seeds into the belt.
J.A. 40856–57 (856:22–857:5).
On this record, we see no abuse of discretion in the dis-
trict court’s conclusion that the jury’s noninfringement ver-
dict was not against the great weight of the evidence.4
B
With respect to the second argument, Deere argues
that the district court’s exclusion of AGCO’s ’037 patent
was prejudicial error and warrants a new trial. During the
trial, on cross-examination, Deere sought to establish that
the ’037 patent covers the design for the feeder wheels in
AGCO’s SpeedTube and thus proves infringement by show-
ing that the accused products capture the seeds. J.A.
40897–902 (897:19–902:13). The district court did not al-
low Deere to rely on the ’037 patent stating:
I’m not going to allow you to pursue this line of
questioning. The sentence in question [from
4 Deere also argues that “the district court never con-
sidered whether the verdict was against the weight of the
evidence.” Appellant’s Br. 45. We disagree. The district
court’s 65-page decision recited the correct standard of re-
view, summarized the relevant record evidence, and pro-
vided a thorough and comprehensive analysis supporting
its conclusions. See generally Post-Trial Opinion.
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DEERE & COMPANY v. AGCO CORP . 8
AGCO’s interrogatory response] cited by Deere
says, quote, “Precision Planting obtained patents
showing the novel idea for the feeder wheels,” un-
quote.
That’s not the same thing as the feeder wheels that
are actually used in the accused products, and I’m
not going to allow under [Federal] Rule [of Evi-
dence] 403, us to get into a mini trial [about
whether] [t]his patent not asserted in this case co-
vers the accused products and uses language that
it would be fair to conclude addresses the exact
same issues in and language used in the asserted
patents.
Post-Trial Opinion, 659 F. Supp. 3d at 449 (citation omit-
ted).
We review the district court’s exclusion of the ’037 pa-
tent for abuse of discretion. See Acumed LLC v. Advanced
Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009). Un-
der Federal Rule of Evidence 403, a district court “may ex-
clude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, mislead-
ing the jury, undue delay, wasting time, or needlessly pre-
senting cumulative evidence.” Fed. R. Evid. 403. Here, the
district court carefully weighed the probative value of the
’037 patent against countervailing considerations, such as
the possible need for a “mini trial” to determine whether
the feeder wheels described in the ’037 patent are the same
as the feeder wheels in the accused products. We conclude
that the district court did not abuse its discretion when it
excluded the ’037 patent under Federal Rule of Evidence
403.
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DEERE & COMPANY v. AGCO CORP . 9
C
With respect to the third argument, Deere argues that
the district court made several claim-construction-related
errors mid-trial warranting a new trial.
One of those purported claim-construction-related er-
rors was the district court’s removal of the “no disclaimer”
language in its construction of the seed-delivery-system
terms mid-trial.5 We must first provide some additional
background as to how this issue arose. At claim construc-
tion, the district court construed the seed delivery system
terms to mean “apparatus / system / method that removes
seed from the seed meter by capturing the seed and then
delivers it to a discharge position.” J.A. 125 (emphasis
omitted). The district court also rejected AGCO’s argu-
ment that Deere disclaimed any claim scope that would al-
low a seed to drop by gravity. J.A. 38166 (166:2–3).
At trial, before opening arguments, AGCO objected to
Deere’s slide including the “no disclaimer” language. J.A.
40024–26 (24:17–26:20). The district court ultimately al-
lowed Deere to show the disputed slide to the jury. J.A.
40031–32 (31:2–32:21). Later during the trial, the district
court ruled that, to prevent jury confusion, Deere could not
“put in front of the jury again that I have construed the
claim to say no disclaimer.” J.A. 41030–32 (1030:10–
1032:9). The district court also stated that Deere could ar-
gue to the jury that the district court’s claim construction
does not preclude a gravity drop or free fall of the seed. J.A.
41031 (1031:1–9).6 When the parties discussed the final
5 The “no disclaimer” language refers to the follow-
ing language: “No disclaimer of a seed delivery apparatus /
system / method that allows for seeds to drop by gravity
between the seed meter and discharge.” J.A. 125.
6 Deere made this exact argument at closing argu-
ment. J.A. 41204 (1204:12–13) (“And, indeed, the [c]ourt
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DEERE & COMPANY v. AGCO CORP . 10
jury instructions with the district court, the court ruled
that the “no disclaimer” language would not be included in
the final jury instructions. J.A. 41140 (1140:13–18). The
final jury instructions read to the jury construed “seed de-
livery system” to mean “system that removes seed from the
seed meter by capturing the seed and then delivers it to a
discharge position” and “method of delivering a seed” to
mean “method that removes seed from the seed meter by
capturing the seed and then delivers it to a discharge posi-
tion.” Post-Trial Opinion, 659 F. Supp. 3d at 435.
With this background, we turn to the merits of Deere’s
arguments. We disagree with Deere that the district court
modified its construction of the seed-delivery-system terms
mid-trial. The district court’s construction of the seed-de-
livery-system terms at claim construction was the same
construction read to the jury. Compare J.A. 125, with Post-
Trial Opinion, 659 F. Supp. 3d at 435. The “no disclaimer”
language was not part of the district court’s construction of
the seed-delivery-system terms. This language merely in-
dicated that the district court rejected AGCO’s disclaimer
argument. That Deere displayed the slide with the “no dis-
claimer” language during opening argument does not
change our analysis. The demonstrative was not a mani-
festation of the district court’s construction of the seed-de-
livery-system terms. Rather, the demonstrative reflected
an argument Deere was permitted to make—that the as-
serted claims do not preclude a free fall or gravity drop of
the seed. J.A. 40031 (31:2–17). And Deere made this exact
argument at closing argument—i.e., that the district
court’s construction of the seed delivery system terms “do[]
not exclude gravity drop.” J.A. 41204 (1204:13).
Deere next argues that AGCO improperly relitigated
the claim scope of the seed-delivery-system terms during
has made clear that the claim permits -- does not exclude
gravity drop.”).
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DEERE & COMPANY v. AGCO CORP . 11
trial by arguing that capture required the seeds to be con-
trolled at all times without any gravity drop or free fall.
During oral argument, Deere identified several instances
when AGCO purportedly argued that the accused products
do not infringe because there is a period of time when the
seeds are in free fall. See, e.g., Oral Arg. at 3:00–4:14 (cit-
ing J.A. 40191, 40194, 40874, 41001, 41225).7 But AGCO
did not argue that the accused products do not infringe be-
cause the seeds are in free fall. AGCO argued that a seed
in free fall is evidence that the accused products do not cap-
ture the seeds. See, e.g., J.A. 41001 (1001:2–6) (“Q. And
what understanding of ‘capture’ did you apply in analyzing
whether SpeedTube removes the seed from the seed meter
by capturing it? A. I was defining ‘capture’ to be controlling
all of the aspects of the motion of the seed.”). AGCO’s ar-
guments were consistent with the district court’s claim con-
struction of the seed-delivery-system terms.
Deere also argues that the district court should have
construed “capture.” Deere never requested a construction
of “capture” before the case was submitted to the jury. The
crux of the dispute is whether the accused products capture
the seeds—a question for the jury to resolve. In fact, Deere
concedes this point when arguing that its JMOL on in-
fringement was preserved. Deere stated:
The entire course of trial—and most of pretrial, in-
cluding claim construction, summary judgment,
and [AGCO]’s motion to reconsider claim construc-
tion—focused heavily on whether [AGCO]’s
SpeedTube met the construction of “seed delivery
system” by removing seeds from the seed meter by
“capture.” That was not just the “central” issue; it
was the only issue.
7 No. 23-1811, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=23-1811_01062025.mp3.
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DEERE & COMPANY v. AGCO CORP . 12
Appellant’s Br. 74–75 (emphasis in original).
We have considered Deere’s remaining claim-construc-
tion arguments and find them unpersuasive. For these
reasons, we affirm the district court’s denial of Deere’s mo-
tion for a new trial on infringement.
II
We next turn to Deere’s challenge to the district court’s
denial of Deere’s motion for JMOL on infringement. The
district court concluded that Deere forfeited its right to
seek JMOL on infringement and also denied Deere’s mo-
tion on its merits. Post-Trial Opinion, 659 F. Supp. 3d at
439–41.
Under Rule 50(b), “a party must have first moved for
JMOL under Rule 50(a) at the close of all the evidence in
order to preserve the right to renew that same JMOL mo-
tion after the jury returns its verdict.” Comaper Corp. v.
Antec, Inc., 596 F.3d 1343, 1347 (Fed. Cir. 2010); see also
Kars 4 Kids Inc. v. Am. Can!, 8 F.4th 209, 220 (3d Cir. 2021)
(“[A] post-trial Rule 50 motion can only be made on grounds
specifically advanced in a motion for a directed verdict at
the end of plaintiff’s case.” (cleaned up)). The district court
concluded that “Deere failed to make a Rule 50(a) JMOL of
infringement motion and therefore has [forfeited] its right
to seek JMOL of infringement under Rule 50(b).” Post-
Trial Opinion, 659 F. Supp. 3d at 439–40.
Tellingly, Deere does not cite to any instance where it
moved for JMOL on infringement before the close of evi-
dence. Instead, Deere cites to AGCO’s Rule 50(a) JMOL on
noninfringement and the district court’s denial of such mo-
tion as evidence that Deere’s JMOL on infringement was
preserved. Deere’s arguments are unpersuasive. On this
record, Deere cannot rely on AGCO’s Rule 50(a) JMOL on
noninfringement or the district court’s denial of such mo-
tion to satisfy Rule 50(a). See Comaper, 596 F. 3d at 1347
(concluding party did not meet “the letter and spirit of”
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DEERE & COMPANY v. AGCO CORP . 13
Rule 50(a) “when it failed to actually take the step of mov-
ing for JMOL” and instead argued against the opposing
party’s Rule 50(a) motion). The district court thus correctly
concluded that Deere failed to move for JMOL on infringe-
ment under Rule 50(a) before the close of evidence. Given
this determination, we need not address the merits of the
district court’s denial of Deere’s JMOL on infringement.
We thus affirm the district court’s denial of JMOL on in-
fringement.
C ONCLUSION
We have considered Deere’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the district court’s order denying Deere its requested
post-trial relief.
AFFIRMED
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