A Chicago federal judge has thrown a wrench into a jury's $5.9 million verdict for a suburban toolmaker, who alleged retail giant Sears copied his patented design for an implement for removing nuts and bolts, saying Sears deserves a new trial because one of her jury instructions was based on a faulty definition of a tool term made by a prior judge in the five-year-long case.

U.S. District Judge Rebecca Pallmeyer issued the ruling Dec. 22 favoring Sears, headquartered in suburban Hoffman Estates, in a suit brought against it by Loggerhead Tools, of suburban Palos Park, which is headed by Dan Brown Sr.

Brown said he designed what he calls the Bionic Wrench, applying for a patent for the tool in January 2004, then founding Loggerhead Tools to sell the wrench. Brown said the implement is unique in that it adjusts nuts or bolts with handles that squeeze, so the wrench doesn't slip or damage the bolt. Further, because the wrench is adjustable, it can be used for any size nut or bolt within a certain range, whether the size is metric or not, according to Brown.

Brown said he sold thousands of the wrenches beginning in 2009 to Sears, and as part of his agreement with the retailer, did not sell to Sears' competitors. Sears then allegedly copied the wrench, named it the “Max Axess Locking Wrench” and started selling it in September 2012. Sears continued buying Brown's product and retailing it through at least June 2016, court documents said.

Brown sued Sears in November 2012 for patent infringement, with Sears denying it had done so. Brown claimed Sears' action cost him millions of dollars in lost profits.

During the work-up to trial, U.S. District Judge John Darrah defined several ambiguous terms used by Brown in describing the similarities between his wrench and that of Sears. A key term was “arm portion.”

Sears defined arm portion as the part of the “gripping element that projects from the body portion and to which the force transfer element is connected.” Under this definition, Sears claimed they did not infringe on Brown's patent.

However, Darrah rejected Sears' definition and fashioned his own, saying arm portion meant the “portion of the gripping element configured to engage one of the guides and contiguous with a force transfer element.”

On Feb. 3, 2017, Darrah was replaced on the case by Judge Pallmeyer. Darrah died March 23 and the case went to trial in early May.

In her jury instructions, Pallmeyer passed on Darrah's definition of arm portion. The jury found for Brown, awarding $5.9 million. Sears argued the faulty definition cost them the trial.

Pallmeyer agreed with Sears.

“After careful consideration of the evidence presented at trial and the arguments made by the parties, the court concludes that Judge Darrah's claim construction of 'arm portion' is flawed and must be revisited,” Pallmeyer found.

Pallmeyer added the jury instruction was “erroneous,” because it was based on Darrah's “erroneous” definition. Pallmeyer said Sears deserved a new trial, because the “erroneous instruction could well have changed the result of the jury's decision.”

A status hearing is Jan. 25.

Loggerhead has been represented by Skiermont Derby LLP, of Dallas and Bartlit, Beck, Herman, Palenchar & Scott, of Chicago.

Sears has been defended by the Chicago firms of Winston & Strawn, and Kirkland & Ellis.

 

 

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Kirkland & Ellis LLP U.S. District Court for the Northern District of Illinois Winston and Strawn LLP




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