
    William T. PORDY and Carberry Corporation, Plaintiffs-Appellants, v. LAND O’LAKES, INC., Defendant-Cross Appellant.
    No. 03-1182, 03-1202.
    United States Court of Appeals, Federal Circuit.
    Dec. 20, 2004.
    Before SCHALL, GAJARSA, and PROST, Circuit Judges.
   ORDER

Land O’Lakes Inc. (“LOL”) petitions for rehearing of our earlier decision affirming the district court’s claim construction, reversing on the issue of the effective filing date, vacating the JMOL and the jury verdict and remanding the matter to the district court for a new trial limited to the issue of anticipation. We deny the petition but clarify the previous opinion on the following issues.

First, our prior opinion stated very clearly that the jury had before it evidence sufficient to support its findings of infringement and willful infringement, therefore, the exclusion from evidence of LOL’s Opinion of Counsel was not error. The district court properly concluded that the Opinion of Counsel was not admissible. Evidentiary rulings are within the discretion of the trial court and shall not be overturned unless they “constitute[ ] an abuse of discretion and affect[] a party’s substantial rights.” Ramey v. District 141, Int’l Ass’n of Machinists & Aerospace Workers, 378 F.3d 269, 281 (2d Cir.2004).

The trial court did not abuse its discretion in its evidentiary ruling.

Second, we do not consider the second issue raised by LOL to be of any significance.

Third, the remand was clear, we vacated the JMOL and the jury verdict and remanded the matter to the district court for a new trial limited to the issue of anticipation. If LOL fails to prove anticipation, the district court shall reinstate the jury’s verdict.

Accordingly,

IT IS ORDERED THAT:

(1) The Petition for Rehearing is denied.  