A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: post-trial-motions

Before the Supreme Court held in Markman v. Westview Instruments that claim construction is an issue of law to be decided by the judge, and not the jury, parties would often build alternative theories of infringement and invalidity into their contentions and expert reports to take into account the different claim construction positions being argued. Because they couldn't know which position would be accepted, they were forced to plan for both, and present theories under both at trial.

Markman changed that practice. Now that claim construction is almost always decided before trial (and usually before expert reports), parties can focus on the judge's construction while building their trial presentation. However, it is worth remembering that pretrial claim construction is not set in stone, and that the judge can modify that construction based on any number of inputs, including the evidence at trial and the parties' evolving arguments.

Judge Noreika did exactly that in a ruling issued earlier this week, leading to a non-infringement finding for the defendant, and eliminating the need for a post-trial opinion on the evidence and argument submitted during trial.

Dollar Bills
Sharon McCutcheon, Unsplash

Chief Judge Stark today released his opinion on post-trial motions in Roch Diagnostics Co. v. Meso Scale Diagnostics, LLC, C.A. No. 17-189-LPS (D. Del.), following a jury trial last year that resulted in a $137m verdict and a finding of willfulness.

Damages Award on 65% Royalty Theory Confirmed

The Court denied a post-trial motion to undo the jury's damage finding, which equated to an approximately 65% royalty rate (or more, depending on the royalty base).

Interestingly, the jury awarded damages after a one-sided royalty rate presentation by Roche, the accused infringer. The Court had previously excluded the patentee's damages expert's opinion as to the royalty rate, because it used the wrong date …

On Friday, Chief Judge Stark issued his opinion on post-trial motions in Pacific Biosciences of California, Inc. v. Oxfore Nanopore Tech., Inc., C.A. No. 17-275-LPS-CJB (D. Del.).

You may remember it as the case which made news at the time due in part to the mention of coronavirus in the opening statements.

The trial took place March 9-18, just as the first COVID-19 lock downs were ramping up.

Incredibly, both parties touted coronavirus-related effects of their products in their opening statements at trial. Plaintiff suggested that its product could "help develop a vaccine" for the coronavirus. Defendant went even further:

[Defendant made] a product that is changing lives as we speak. Whether it is helping people …