Plaintiffs did not pursue this "capability" argument on appeal. (See Corrected Opening Brief of Plaintiffs-Appellants ArcelorMittal France and ArcelorMittal Atlantique et Lorraine at 41-44, ArcelorMittal France et al. v. AK Steel Corp. et al., 700 F.3d 1314 (Fed. Cir. 2012) (No. 2011-1638) (focusing only on numerical value of construction during appeal)). The parties agreed to forego summary judgment motions, opting instead for an expedited jury trial, which began on January 10, 2011.

On appeal, the Federal Circuit upheld the claim construction in part and reversed in part; the Court also reversed the jury's verdict of anticipation. With respect to obviousness, the Court concluded that a new trial was required because the claim construction error prevented the jury from properly considering plaintiffs' evidence of commercial success. SeeArcelorMittal France v. AK Steel Corp., 700 F.3d 1314 (Fed.Cir.2012) (“ArcelorMittal I ”). Given the robust record in this litigation, I recite only the facts necessary to the analysis.

At minimum, the factual question of what Nordella discloses as a prior art reference is one properly reserved for the jury. See ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314, 1324 (Fed.Cir.2012) (citing Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331, 1345–46 (Fed.Cir.2001)) (“What a prior art reference discloses is a factual question. We think the resolution of this factual dispute was up to the jury.”).

Hot-stamping is a thermal treatment process where steel blanks are rapidly heated, inserted into a stamping machine that contains special dies, stamped into a particular shape, and then rapidly cooled, or quenched. See ArcelorMittal Fr. v. AK Steel Corp. , 700 F.3d 1314, 1317–18 (Fed. Cir. 2012) (" ArcelorMittal I "). The hot-stamping process alters the crystalline microstructure of the steel, and thereby its UTS, by transforming at least a portion of the steel’s microstructure to a form known as martensite. Id. Steel with a martensitic microstructure is capable of having a high UTS. See id. The hot-stamping process gives the steel significantly higher UTS than its pre-stamped state.

In November 2012, we reversed the district court's claim construction in part and concluded that, as a matter of law, the claims were not anticipated. ArcelorMittal France v. AK Steel Corp. , 700 F.3d 1314, 1317 (Fed. Cir. 2012)(ArcelorMittal I ). We then remanded for limited proceedings to address only literal infringement and commercial success.

With respect to obviousness, the Court concluded that a new trial was required because the claim construction error prevented the jury from properly considering plaintiffs' evidence of commercial success. See ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314 (Fed. Cir. 2012) ("ArcelorMittal I"). During the appeal process, in order to "correct" the construction of "very high mechanical resistance," plaintiffs obtained the RE153 patent which added a number of dependent claims.

The RE153 patent issued on April 16, 2013.ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314 (Fed.Cir.2012), with the mandate issuing on March 27, 2013. (D.I.264) Plaintiffs are ArcelorMittal France and ArcelorMittal Atlantique et Lorraine (collectively, “ArcelorMittal”). Defendants are AK Steel Corporation (“AK Steel”), Severstal Dearborn, Inc. (“Severstal”), and Wheeling–Nisshin Inc. (“Wheeling–Nisshin”) (collectively, “defendants”).

IThe RE153 patent is a reissue of U.S. Patent No. 6,296,805 (the '805 patent), which we previously reviewed in ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314 (Fed.Cir.2012) (ArcelorMittal I ). The '805 and RE153 patents share a specification and have identical lone independent claims directed toward a specific type of steel sheet that has “a very high mechanical resistance” after thermal treatment. See '805 patent col. 4. l. 64–col.

On appeal, the Federal Circuit upheld the claim construction in part and reversed in part.See ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314 (Fed. Cir. 2012) ("ArcelorMittal I"). On December 4, 2015, the court granted plaintiffs' motion to file a first amended complaint, substituting U.S. Patent No. RE44.

In this event, I will then entertain a motion for summary judgment on anticipation prior to the commencement of a new trial. Cf. ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314, 1326 (Fed.Cir.2012) (“In remanding for a limited new trial [on literal infringement and obviousness] ... we do not foreclose the district court from entertaining a motion for summary judgment on these issues that might obviate the need for a further trial.”). Medisim's second attempt to avoid confronting the anticipation evidence presented to the jury involves mischaracterizing BestMed's argument for JMOL. Medisim asserts that “BestMed seeks JMOL on anticipation solely on the grounds that the fixed baseline of the FHT–1 device is the same as the ‘deep tissue temperature’ claimed in the '668 [P]atent....” Of course, this is not BestMed's argument: in fact, BestMed argues that the intermediate temperature of the FHT–1 reads on to the ‘deep tissue temperature’ limitation of the ' 668 Patent, not that the ‘fixed baseline’ reads on to the limitation.