United States District Court, D. Delaware
completed my review of the parties' identification of
issues on which each intends to seek post-trial relief. (D.I.
455) As a result, I have formed tentative views as to how any
motions, including those challenging the jury verdict, are
likely to come out. Those inclinations have informed my
decision as to how this matter should proceed. I thought it
would be beneficial for you to know my tentative views of the
proposed motions, in the hope that this will make briefing
and resolution of those motions more efficient for you and
GSK's post-trial motions, I am likely to award
pre-judgment and post-judgment interest, should any damages
award survive motions practice. Appropriate costs will likely
also be awarded to GSK, again on the same condition as just
noted. I am unlikely to enhance damages pursuant to 35 U.S.C.
§ 284 based on the jury's finding of willfulness.
Nor has this case appeared to meet the criteria for an
"exceptional case" within the meaning of 35 U.S.C.
§ 285 - hence, if I am to decide this issue prior to the
case proceeding to an appeal, I am unlikely to award GSK its
to Teva's post-trial motions, I am inclined to agree with
Teva that no jury could reasonably find that 100% of
physicians were actually induced to infringe by Teva's
actions, as opposed to other factors that were well supported
by the trial record. I am presently uncertain as to the
nature of the relief, if any, that would be appropriate for
Teva if I ultimately conclude that I do agree with Teva on
this point. My current belief is that it was correct to
permit GSK to attempt to prove inducement on the theory that
physicians as a class were induced to infringe.
inclined to disagree with Teva that no reasonable juror could
have concluded that Teva's actions induced even a single
physician to administer Teva's carvedilol to a patient
for use in an infringing manner.
also inclined to disagree with Teva that GSK's
"ultimate argument" - "based upon Teva's
having failed to affirmatively state to physicians that
Teva's carvedilol was not approved for treatment of
CHF" - "does not constitute an affirmative act of
inducement" as a matter of law. (D.I. 455 at 2)
As I am
inclined to agree with Teva that a reasonable juror could not
have found that "100% of GSK's alleged lost sales
were induced by Teva" (id.), it is possible
that Teva will be entitled to some relief with respect to the
jury's damages award, at least to the extent that
GSK's damages theory was based on the assumption that
100% of the infringing uses were induced by Teva's
further inclined to agree with Teva that no reasonable juror
could have concluded that Teva's Skinny Label constituted
an affirmative act that encouraged direct infringement.
no present inclination as to the three additional arguments
made by Teva in paragraph 6 of the status report. (See
Id. at 2-3)
I am not inclined to grant judgment as a matter of law or a
new trial on the question of anticipation by the Kelly
my tentative views expressed above, I believe it would be
best for the parties and the Court to resolve the intended
post-trial motions before scheduling the bench trial on
equitable estoppel, unpatentable subject matter,
indefiniteness, and improper dependency. I have further
decided that while some increase in the Court's standard
page limits is warranted, the Court does not require briefing
as extensive as Teva has requested.
the parties shall, if they wish, file post-trial motions and
briefing according to the following schedule:
• Motions are to be filed on August 25, 2017
• Opening briefs, not to exceed a total of 30 pages per
side, due ...