Promega v. Life Technologies was decided on November 13, 2017 on appeal from the Western District of Wisconsin, on remand from the Supreme Court. In the first instance at trial, the jury award plaintiff Promega $52 million in lost profit damages based on all of defendant Life Tech’s worldwide sales. The district court granted Life Tech’s motion for JMOL that “no reasonable jury could have found, based on the trial record, that all of the accused products infringed under § 271(a) or § 271(f)(1).” And the district court further held that Promega had waived any argument that the trial record could support a damages calculation based on a subset of the worldwide sales “by failing to contest Life’s argument in its opening JMOL brief that the record contained no evidence that a jury could use to perform such a calculation.” The Supreme Court remanded the case after holding that infringement under § 271(f)(1) does not cover the supply of a single component of a multicomponent invention. The Federal Circuit was to reconsider the district court’s grant of Life Tech’s motion for JMOL that Promega failed to prove infringement under § 271(a) and (f)(1); and the denial of Promega’s motion for a new trial on damages and infringement.
The Federal Circuit affirmed the grant of JMOL that Promega failed to prove infringement under § 271(a) and (f)(1), and affirmed the denial of Promega’s motion for a new trial on damages and infringement.
35 U.S.C. § 284 “is unequivocal that the district court must award damages in an amount no less than a reasonable royalty when infringement is found.” But here, Promega “expressly waived” its right to any award based on a reasonable royalty through express statements from counsel at trial, and by only seeking damages in the form of lost profits. Thus the question on remand was “whether Promega [was] entitled to some award of its lost profits as damages … under the facts of this case.”
The district court did not clearly err in finding that Promega waived a damages theory based on the subset of the worldwide sales. “When a patentee seeks lost profits as the measure of damages, the patent holder bears the burden of proving the amount of the award.” Under the law of the regional circuit (Seventh), “a party may waive an argument by not raising it in opposition to a Rule 50(b) motion.” In its opening JMOL brief, Life Tech argued that “with only an aggregate sales number for all kits combined, the jury had no evidence upon which” it could award damages based on a subset of the worldwide sales. The district court found that “Promega did not dispute this argument in its responsive JMOL brief and, therefore, that Promega had conceded the point.” The Federal Circuit agreed. Promega took an “all-or-nothing” approach to damages, electing to attempt to prove only the “fact of damages” during its rebuttal case, “as opposed to any particular amount of damages.” “Promega’s deliberate strategy to adhere to a single damages theory had the effect of winnowing out from the case any argument about damages based on a figure other than worldwide sales.”
“Because there was insufficient evidence to show that all worldwide sales infringed under § 271(a) or § 271(f)(1)…, there was no evidence to support a lost profits damages calculation under the narrow damages theory Promega crafted over the course of litigation.”
The district court did not abuse its discretion by relying on its waiver finding to support its decision to deny Promega’s motion for a new trial. “If Promega wanted to argue that the evidence at trial supported a damages calculation based on anything other than worldwide sales, it should have raised such an argument at trial and in response to Life’s [JMOL] motion, which specifically attacked Promega’s damages case on that very ground.” “[A] patent owner may waive its right to a damages award when it deliberately abandons valid theories of recovery in a singular pursuit of an ultimately invalid damages theory.”
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