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Vectura Ltd. v. Glaxosmithkline LLC

United States District Court, D. Delaware

September 12, 2019

VECTURA LIMITED, Plaintiff;
v.
GLAXOSMITHKLINE LLC and GLAXO GROUP LIMITED, Defendants.

          Kelly E. Farnan and Christine D. Haynes, RICHARDS, LAYTON & FINGER, P.A., Wilmington, DE; Dominick A. Conde, Christopher P. Borello and Damien N. Dombrowski, VENABLE LLP, New York, NY, attorneys for Plaintiff.

          Jack B. Blumenfeld and Jeremy A. Tigan, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Martin J. Black, Kevin M. Flannery, Robert Ashbrook, Sharon K. Gagliardi, DECHERT LLP, Philadelphia, PA; Blake B. Greene, DECHERT LLP, Austin, TX; Katherine A. Helm, DECHERT LLP, New York, NY, attorneys for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Currently pending before the Court is Plaintiffs Motion for Supplemental Damages, Enhanced Damages, an Ongoing Royalty, Pre-and Post-Judgment Interest, and Attorney Fees. (D.I. 338). The parties have fully briefed the issues. (D.I. 339, 344, 350). For the following reasons, I grant the motion as to supplemental damages, pre-judgment interest, post-judgment interest, and an ongoing royalty, and deny the motion for enhanced damages or attorney fees.

         I. BACKGROUND

         On July 27, 2016, Plaintiff Vectura Limited sued Defendants GlaxoSmithKline LLC and Glaxo Group Limited for direct and induced infringement of U.S. Patent No. 8, 303, 991 ("the '991 patent"). (D.I.I). The '991 patent relates to pharmaceutical compositions for inhalation. (D.I. 82 at 1). Before trial, Plaintiff narrowed their infringement case to assert direct infringement of claim 3 of the '991 patent ("the asserted claim"). (D.I. 307). Plaintiff also pursued a claim of willful infringement of the asserted claim. (Id. at 11). Defendants asserted a noninfringement defense and an invalidity defense under 35 U.S.C. § 103. (Id; D.I. 320 at 2).

         Claim 3 of the '991 patent depends from claims 1 and 2. Together, the claims read as follows:

1. Composite active particles for use in a pharmaceutical composition for pulmonary administration, each composite active particle comprising a particle of active material and particulate additive material on the surface of that particle of active material, wherein the composite active particles have a mass median aerodynamic diameter of not more than 10 um, and wherein the additive material promotes the dispersion of the composite active particles upon actuation of a delivery device.
2. Composite active particles as claimed in claim 1, wherein the additive material includes one or more of: an amino acid or derivative thereof; a peptide or derivative thereof, a phospholipid or derivative thereof, a surface active material; or a metal stearate and derivative thereof.
3. Composite active particles as claimed in claim 2, wherein the additive material includes magnesium stearate.

('991 patent, els. 1-3).

         After a five-day trial, the jury returned the following verdict: (1) Defendants infringed claim 3 of the '991 patent, (2) claim 3 was not invalid for obviousness, (3) Plaintiff was entitled to an ongoing royalty payment of three percent for a total sum of $89, 712, 069 through December 31, 2018, and (4) Defendants' infringement was willful. (D.I. 321). The parties have now filed post-trial motions. Plaintiff requests the following: (1) an award of supplemental damages at the jury-determined royalty rate of 3% of U.S. sales of the accused products from January 1, 2019 to the entry of judgment on May 16, 2019; (2) enhancement of damages for the period from August I, 2016 through May 16, 2019 by 33.3% for Defendants' willful infringement; (3) an ongoing royalty rate of 4% for post-judgment sales; (4) an award of pre-judgment interest; (5) an award of post-judgment interest; and (6) if I decline to enhance the damages award, an award of reasonable attorney fees. (D.I. 339 at 1).

         II. SUPPLEMENTAL DAMAGES AND INTEREST

         A. Supplemental Damages

         The jury awarded damages for the period from August 1, 2016 to December 31, 2018. Supplemental damages cover the period from January 1, 2019 to May 16, 2019, the date of judgment. (D.I. 339 at 3). Plaintiff seeks supplemental damages at the 3% royalty rate determined by the jury. (Id.).

         Defendants argue that Plaintiffs motion for supplemental damages and interest is time-barred because the motion was filed one day after the 28-day deadline stated in Federal Rule of Civil Procedure 59(e). (D.I. 344 at 2).[1] However, the Third Circuit has recognized that "time limits that are not based on a statute, such as the one governing Rule 59(e), are not jurisdictional rules, but claim-processing rules." Lizardo v. U.S., 619 F.3d 273, 277 (3d Cir. 2010). "The 'unique circumstances' doctrine has been applied by courts in certain unique situations, as its name implies, to contravene the effects of untimely filings." S.O.I.TEC, S.A. v. MEMC Elec. Materials, Inc., 2011 WL 2748725, at *8 (D. Del. July 13, 2011). The "unique circumstances" doctrine may be appropriate to provide relief under such claim-processing rules. As in S.O.I.TEC, "(1) there was no miscalculation involved; (2) it is apparent that [Plaintiff] relied on the parties' agreement in filing its motion on [June 14, 2019]; and (3) there is no indication that either party knew the one-day extension was inappropriate when requested." Id. Thus, I determine that Plaintiffs motion for supplemental damages and interest is not time-barred.

         Defendants make no other argument regarding the propriety of supplemental damages beyond asserting two corrections to Plaintiffs supplemental damages number. (D.I. 344 at 2 n. 2). Defendants assert that Ms. Schenk used "estimates for sales for the period from April 1 through May 16" while Dr. Kerr used actual sales and "did not account for a deduction for the lesser of 4.5% net sales of £23.56M annually, which she made in her original damages calculation." (Id.) Ms. Schenk's declaration admits that she relied on estimates for sales for the period from April 1 through May 16. (D.I. 340, ¶ 5).

         Accordingly, I will award Plaintiff supplemental damages for the period from January 1, 2019 through May 16, 2019, based on the actual sales data for that period and a 3% royalty rate.

         B. Pre-Judgment Interest

         Pre-judgment interest should be awarded "absent some justification for withholding such an award." Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 657 (1983). Plaintiff seeks pre-judgment interest at the prime rate, compounded quarterly. (D.I. 339 at 23). Defendant argues that (1) the motion should be denied because pre-judgment interest would be a "windfall" overcompensating Plaintiff for the use of its patents and (2) if the motion is granted, pre-judgment interest should be calculated at the Treasury Bill Rate, compounded quarterly. (D.I. 344 at 26). Defendants assert that the Treasury rate is more appropriate given Plaintiffs low borrowing rate. (Id.).

         This Court has noted that "the prime rate best compensate[s] a patentee for lost revenues during the period of infringement because the prime rate represents the cost of borrowing money, which is a better measure of the harm suffered as a result of the loss of the use of money over time." Finjan Software, Ltd. v. Secure Computing Corp., 2009 WL 2524495, at * 13 (D. Del. Aug. 18, 2009), aff'd in part, rev'd in part on other grounds, 626 F.3d 1197 (Fed. Cir. 2010) (citations and quotation marks omitted). I do not believe Plaintiffs low borrowing rate counsels otherwise.

         Thus, I will award pre-judgment interest at the prime rate, compounded quarterly.[2]

         C. ...


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