Use of total sales as royalty base is proper and apportionment analysis unnecessary under comparable license theory

Vectura v. GlaxoSmithKline was decided on November 19, 2020 on appeal from the District of Delaware. At trial, Plaintiff Vectura prevailed on the issues of validity, infringement, and willful infringement, and the “jury awarded Vectura a royalty of 3% on a royalty base of $2.99 billion in sales for the …

Invalidity opinion of counsel is relevant but not dispositive in willfulness inquiry

C. R. Bard v. AngioDynamics was decided on November 10, 2020, on appeal from the District of Delaware. Partway through the jury trial, the district court granted Defendant AngioDynamics JMOL that Plaintiff Bard’s asserted claims were not infringed, were not willfully infringed, and were invalid as directed to ineligible subject …

Availability of infringing generic alternatives is not a proper consideration for pharmaceutical lost profits

GlaxoSmithKline v. Teva was decided on October 2, 2020, on appeal from the District of Delaware. The jury found that Defendant Teva induced infringement of Plaintiff GSK’s patent, awarded GSK “$234,110,000 based on lost profits, plus royalty payments of $1,400,000,” and found that the infringement was willful. The district court …

Ongoing FRAND royalty applied to unaccused and unadjudicated products is affirmed

Godo Kaisha IP Bridge 1 v. TCL Communication was decided on August 4, 2020, on appeal from the District of Delaware. At trial, Plaintiff IP Bridge argued that the asserted patents are essential to a standard and that Defendant TCL’s accused devices are compatible with the standard. The jury found …

Jury royalty affirmed but injunction partially vacated because Defendant depends entirely on sales of enjoined products

Bio-Rad Labs. v. 10X Genomics was decided on August 3, 2020, on appeal from the District of Delaware. The jury found that Plaintiff Bio-Rad’s three asserted patents were valid and willfully infringed, and “awarded damages in the amount of $23,930,716.” Post-trial, the district court denied Defendant 10X’s motion for  JMOL, …

Injunction denied, despite irreparable harm provision, because Plaintiff is not likely to show breach of contract

Takeda v. Mylan was decided on July 31, 2020, on appeal from the District of Delaware. In 2016, Plaintiff Takeda sued Defendant Mylan for patent infringement. The parties ultimately settled. The license agreement allows Mylan to sell a generic product in the event that a court decision “hold[s] that all …

Assignor estoppel bars assignor from challenging patent validity at the district court but not the PTAB

Hologic v. Minerva Surgical was decided on April 22, 2020 on appeal from the District of Delaware. A named inventor of the eventual asserted patents (the ‘183 and the ‘348) assigned his rights to the relevant patent applications to a company that would later be acquired by plaintiff Hologic. Years …

Defendant was prevailing party for fees after invalidating asserted claims at the PTAB

Dragon Intellectual Property v. DISH Network was decided on April 21, 2020 on appeal from the District of Delaware. After plaintiff Dragon sued defendant DISH for patent infringement, Dish filed a petition seeking inter partes review of the asserted patent. Following a claim construction hearing at the district court, the …

Jury lump sum biologics royalty is supported by substantial evidence

Amgen v. Hospira was decided on December 16, 2019 on appeal from the District of Delaware. Following the biosimilar trial, the jury found some patent claims (and not others) infringed and awarded plaintiff Amgen a reasonable royalty lump sum of $70 million. “Of the twenty-one accused drug substance batches, the …

Willfulness, enhancement, and attorney fees vacated

SRI International v. Cisco was originally decided on March 20, 2019, and modified on July 12, 2019 on appeal from the District of Delaware. In the modified opinion, the Federal Circuit vacated the award of attorney fees, which was based in part on the vacated willfulness finding, and remanded for further consideration …