United States District Court, D. Delaware
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Court held a jury trial on damages beginning on January 3,
2019. (See D.I. 1263-69) On January 14, the jury
awarded Plaintiff Greatbatch Ltd. ("Plaintiff or
"Greatbatch") $22, 169, 007. (D.I. 1247) The Court
entered final judgment on February 21, 2019. (D.I. 1260)
AVX Corporation and AVX Filters Corporation ("AVX"
or "Defendants") moved for judgment as a matter of
law and a new trial. (D.I. 1270) Greatbatch also filed
multiple post-trial motions. (D.I. 1273)
23, 2019, following an oral argument, the Court granted
Greatbatch's motions in part, awarding prejudgment and
post-judgment interest, but denying Greatbatch's requests
for (1) additur for Ingenio lost sales; (2) attorneys'
fees; and (3) reinstatement of a prior verdict or
alternatively a new trial on price erosion for Frontier and
NG3. (D.I. 1295 ("Tr") at 83-90) The Court also
denied in part AVX's motion for judgment as a matter of
law or a new trial on (1) infringement of the asserted claims
of the '095 patent; (2) contributory infringement of
claim 12 of the '627 patent; and (3) invalidity of the
'627 patent. (Id. at 78-83) The Court took under
advisement AVX's motion for judgment as a matter of law
on price erosion for Ingenio and damages for NG3.
(Id. at 79)
thoroughly reviewed the record and taken additional time to
consider AVX's Ingenio and NG3 damages motions, the Court
will deny AVX's motion for judgment as a matter of law
(D.I. 1270) in its entirety.
as a matter of law is appropriate if "the court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis to find for [a] party" on an issue.
Fed.R.Civ.P. 50(a)(1). "Entry of judgment as a matter of
law is a sparingly invoked remedy," one "granted
only if, viewing the evidence in the light most favorable to
the nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from
which a jury reasonably could find liability." Marra
v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)
(internal quotation marks omitted).
prevail on a renewed motion for judgment as a matter of law
following a jury trial, the moving party "must show that
the jury's findings, presumed or express, are not
supported by substantial evidence or, if they were, that the
legal conclusions implied [by] the jury's verdict cannot
in law be supported by those findings." Pannu v.
Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998)
(internal quotation marks omitted).
"'Substantial' evidence is such relevant
evidence from the record taken as a whole as might be
accepted by a reasonable mind as adequate to support the
finding under review." Perkin-Elmer Corp. v.
Computervision Corp., 732 F.2d 888, 893 (Fed. Cir.
assessing the sufficiency of the evidence, the Court must
give the non-moving party, "as [the] verdict winner, the
benefit of all logical inferences that could be drawn from
the evidence presented, resolve all conflicts in the evidence
in his favor, and in general, view the record in the light
most favorable to him." Williamson v. Consol. Rail
Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); see also
Perkin-Elmer Corp., 732 F.2d at 893. The Court may not
assess the credibility of witnesses nor "substitute its
choice for that of the jury between conflicting elements of
the evidence." Perkin-Elmer Corp., 732 F.2d at
893. Rather, the Court must determine whether the evidence
reasonably supports the jury's verdict. See Dawn
Equip. Co. v. Ky Farms Inc., 140 F.3d 1009, 1014 (Fed.
Cir. 1998); Gomez v. Allegheny Health Servs. Inc.,
71 F.3d 1079, 1083 (3d Cir. 1995) (describing standard as
"whether there is evidence upon which a reasonable jury
could properly have found its verdict"); 9B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 2524 (3d ed. 2008) ("The
question is not whether there is literally no evidence
supporting the party against whom the motion is directed but
whether there is evidence upon which the jury properly could
find a verdict for that party.").
argues that substantial evidence does not support the Ingenio
price erosion verdict because Greatbatch failed to prove a
pre-erosion price or that the price actually dropped. (Tr. at
5-6) (AVX: "In a price erosion case, it's the
patentee that must establish the amount of the price
reduction. They can't guess at it. They can't make it
up.") AVX further contends that Greatbatch's damages
expert, Dr. Strickland, based his price erosion calculations
on data that was too hypothetical, including "a 2007
budgetary quote for an unfiltered feedthrough ('UFT')
called Falcon/Ingenio that BSC [Boston Scientific
Corporation] never accepted," "one Greatbatch
internal pricing scenario selected from among 3, 000 for a
filtered feedthrough ('FFT')," and "the
conclusory and uncorroborated testimony of Greatbatch's
employees." (D.I. 1271 at 2; see also Tr. at
10-16) In AVX's view, there is insufficient evidence of
technical comparability between Ingenio and the Falcon
product, employee testimony provides no evidence of the
amount of erosion, and a budgetary scenario selected by
Plaintiffs expert - a $95 price in May 2010, which was used
to derive the $30 price erosion for Ingenio - was chosen from
four options without any rationale. (D.I. 1271 at 4-7) AVX
further argues that because the June 2009 Ingenio FFT price
quote (which predates AVX's December 2009 qualification
as a second source) is the same as the prices eventually
negotiated in the 2011 supply agreement, no erosion occurred.
(Tr. at 6)
these criticisms, the Court agrees with Greatbatch that
"giving Greatbatch the advantage of every fair and
reasonable inference, there is sufficient evidence to support
the verdict." (Tr. at 19) The jury was free to credit
Dr. Strickland's testimony "that Greatbatch would
not have agreed to that eroded filtering price in the
'but for' world (where AVX did not infringe)."
(D.I. 1280 at 3) A market reconstruction for purposes of
assessing price erosion damages is a hypothetical exercise
and involves no per se obligation of establishing an
"actual price" from which erosion is measured.
See, e.g., Grain Processing Corp. v. Am. Maize-Prods.
Co., 185 F.3d 1341, 1350 (Fed. Cir. 1999); Wechsler
v. Macke Int'l Trade, Inc., 486 F.3d 1286, 1293
(Fed. Cir. 2007) ("Normally, if the patentee is not
selling a product, by definition there can be no lost
profits. The only exception is where the patentee has the
ability to manufacture and market a product, but for some
legitimate reason does not.") (internal quotation marks
and citation omitted); see also Tr. at 21.
Greatbatch makes the reasonable argument that "[t]here
was no historical, uneroded price for the Ingenio FFT"
filtering. (D.I. 1280 at 3) Substantial evidence supports the
jury's implicit finding that the manner in which BSC
purchased the patented technology from Greatbatch changed
after AVX's infringement, creating downward pressure on
the prices Greatbatch could charge BSC. (See Tr. at
20 (Greatbatch: "Boston Scientific, due to AVX's
infringement, was able to do what Greatbatch didn't want
it to do, which is vertically integrate the filtered
feedthrough so that Greatbatch and AVX would be providing
filtering only on an Ingenio that had a Boston Scientific
unfiltered feed through. That is where the price erosion
comes from."); see also Id. at 26
("[T]here was never just filtering possible until AVX
infringed.")) AVX acknowledges that BSC put pressure on
Greatbatch to reduce prices (see Tr. at 17), and BSC
believed it had succeeded in using AVX to drive down
Greatbatch prices (see, e.g., D.I. 1284-1, Ex. 38
these circumstances, Dr. Strickland could properly rely on
"a detailed analysis of the companies involved,
including a comprehensive review of Greatbatch's pricing,
sales, and costs; discussions with many Greatbatch employees;
and review of thousands of confidential documents, including
the contracts and contract negotiation documents, as well as
publicly-available information such as the parties['] and
BSC's 10-Ks." (D.I. 1280 at 4) Further, the jury
could properly and reasonably accept the Falcon/Ingenio
comparison. (Id. at 5-6) The Court agrees with
Greatbatch that "AVX's contentions that the quote is
budgetary, not discounted for volume or not sufficiently
linked to Ingenio simply go to the weight of the
evidence." (Tr. at 22)
also argues that substantial evidence does not support the
NG3 damages verdict, including lost sales and price erosion:
Greatbatch's reconstructed market included only
Greatbatch and AVX, i.e., a sale made by AVX was a sale lost
by Greatbatch. But, as of 2014, BSC was in the market as a
filter supplier. Because Greatbatch's reconstructed
market did not include BSC, the NG3 lost profits and price
erosion verdict is not supported.
(D.I. 1271 at 8-9) AVX points to testimony that "after
giving notice, BSC supplied its own filter for NG3,"
meaning there was no two-supplier market that would support
Greatbatch's damages ...