As reported in the April/May 2009 edition of the Patent & Trademark Bulletin for the District of Massachusetts, the district court awarded Plaintiff Gentile $1,897,650.84, which included treble damages for willful infringement of the patent-in-suit concerning a street hockey ball partially filled with non-toxic liquid antifreeze. Defendant John M. Gill (“Gill”) appealed the District Court’s decision denying his motion for a new trial. The Federal Circuit disagreed with Gill’s appellate arguments and affirmed Judge Gertner’s decision.

The Federal Circuit first reviewed the question of laches and held that Gill failed to raise any question that would challenge the District Court’s acceptance of other litigation as justification for delay.

The Court then turned its attention to Gill’s challenge that there was insufficient evidence to support the damages award. The record established that Gill, himself, had either destroyed or withheld relevant records. He thus could not complain about insufficient evidence when he in fact was responsible for the destroying or withholding of pertinent evidence. Even in light of Gill’s pro se status, the Federal Circuit upheld the Court’s award of damage and trebling of same.