Brigham and Women 2019s Hospital v. Perrigo Co. (13-cv-11640).

  • August 12, 2017

Judge Zobel entered final judgment in accordance with the December 14, 2016 jury verdict and her April 24, 2017 Order. The final judgment included:
direct and indirect willful infringement of U.S. Patent 5,229,137;

2018137 patent valid over the prior art of record;

Perrigo was not entitled to a laches defense because plaintiffs knew or should have known of infringement only as of August 2008, too recent for laches to apply;
Damages of $10,210,071;

Attorneys 2019 fees were not awarded, as the defense, while not successful, was not frivolous or vexatious, as Perrigo had investigated infringement and invalidity before filing its ANDA application ad Brigham 2019s corporate witness testified that it did not immediately bring suit for fear of losing royalties should the claims be found invalid; and

Enhanced damages would not be applied, despite the jury 2019s finding of willfulness, in part because the awarded damages were at the high end of those sought.

Judge Zobel 2019s April order was interesting in that she found that final judgment had previously been entered, triggering the timelines of Fed R. 50(b) and 59(e), which could not be expanded by the district court, despite her having granted a joint motion to extend the deadline. Thus, Perrigo 2019s renewed motion for judgment as a matter of law was not timely filed, and its notice of appeal was also late.

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