Nova obtains a "win" on supplemental damages in the Dow case

The US Supreme Court declined to hear the Dow case, which left intact the decision of the Federal Circuit on
supplemental damages.

Reuters reported:


At issue were $28 million in supplemental damages plus interest that a federal judge awarded to Dow for Nova's infringement of its patents from January 2010 to October 2011, when the patents expired.

The court's action does not affect the $61 million in damages that a jury in 2010 awarded to Dow for Nova's infringement of the patents prior to 2010. Dow is in the process of merging with Dupont

link: http://www.reuters.com/article/us-usa-court-dow-idUSKCN0YE1QK



** A relevant part of the CAFC decision, as to "how" the supplemental damage award
could be reviewed:


But the exception of course does not apply
if the proceeding has reached the stage of final judgment.
See Mendenhall, 26 F.3d at 1582 (Fed. Cir. 1994). Here,
the supplemental damages proceeding had not been
concluded at the time of Nautilus.

(...)

The change in law exception applies whether the
change in law occurs while the case is before the district
court or while the case is on appeal. See Spiegla, 481 F.3d
at 964 (7th Cir. 2007) (holding that defendants had not
waived challenge to holding in first appeal where issue
not raised on remand in district court or initial briefing
because intervening decision was issued after appellate
briefing); Mendenhall, 26 F.3d at 1583 (law of the case did
not apply where new decision issued while case on appeal);
Morris v. Am. Nat’l Can Corp., 988 F.2d 50, 51–53
(8th Cir. 1993) (law of the case did not apply where, after
first appeal and decision on remand by district court,
Supreme Court case changed prevailing law); Wilson, 791
F.2d at 154, 157 (exception to issue preclusion applied
where intervening decision issued while case pending
before this court).



It was the "supplemental damages" that had not reached the stage of
final judgment, and the CAFC found Dow's claims invalid for indefiniteness,
so the supplemental damages evaporated.

Sadly, for Nova, Nautilus came too late as to the initial decision:


Third, as we now discuss, our original decision would
have been different under the new Nautilus standard.


As to the impact of Nautilus on this case:


The question is whether the existence of multiple
methods leading to different results without guidance in
the patent or the prosecution history as to which method
should be used renders the claims indefinite. Before
Nautilus, a claim was not indefinite if someone skilled in
the art could arrive at a method and practice that method.
Exxon, 265 F.3d at 1379. In our previous opinion, relying
on this standard, we held that the claims were not indefinite,
holding that “the mere fact that the slope may be
measured in more than one way does not make the claims
of the patent invalid.” Dow, 458 F. App’x at 920. This was
so because Dow’s expert Dr. Hsiao, a person skilled in the
art, had developed a method for measuring maximum
slope. See id. at 919–20.

Under Nautilus this is no longer sufficient.