Thursday, November 19, 2020


GSK lost its appeal at the CAFC: Following trial, a jury in the United States District Court for the District of Delaware found that defendants GlaxoSmithKline LLC and Glaxo Group Limited (collectively, “GSK”) infringed U.S. Patent No. 8,303,991 (“the ’991 patent”), owned by plaintiff Vectura Limited, and that the patent was not invalid. The district court denied GSK’s post-trial motions for judgment as a matter of law and a new trial. GSK now appeals from the judgment against it. We affirm. The need to object: The district court noted that GSK had not filed a pretrial Daubert motion. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). For that reason, the court determined that GSK had waived its general objections to Ms. Schenk’s built-in apportionment testimony and would be required to object to any particular question asked of her. However, the court made clear that it did not regard GSK as having waived its objection to the argument that “it’s just pennies on the dollar, so what’s the big deal?” The court added, “I don’t think the sales should be in any way emphasized beyond what is strictly required by the law. So if I hear that happening, I will make my own objection and I will sustain it because that should not be an argument.” J.A. 1437–40. Subsequently, Ms. Schenk provided testimony on damages, in which she referred several times to GSK’s U.S. sales. GSK did not object to those references or to the demonstrative exhibits that included the dollar amount of those sales. During GSK’s case, its damages expert, Dr. Kerr, testified that he thought Vectura’s three percent royalty rate was “holding GSK over a barrel.” J.A. 1886. On cross-examination, Vectura’s counsel challenged that statement, saying, “so it’s your testimony that a three-percent royalty would be putting GSK over a barrel when they had $3 billion worth of infringing product at stake?” J.A. 1887. At that point, the trial judge interceded, noting that he had said that he would police excessive references to the sales amounts. He added: “Let’s not talk any more about [the] 3 billion figure.” J.A. 1888. There was no further reference at trial to the amount of GSK’s sales. Following the close of the evidence, the court instructed the parties not to refer to the overall sales figure during closing arguments. In his closing argument, Vectura’s counsel referred to GSK’s profits, but not the amount of its sales. GSK did not object to counsel’s closing argument. In its opinion on the motion for judgment as a matter of law and for a new trial, the district court found that Vectura had “repeatedly emphasized the amount of revenues made by Defendants and the relative smallness of the damages award they were requesting,” and that its conduct in that regard was improper. Vectura, 397 F. Supp. 3d at 594. However, the court agreed with Vectura that, unlike in most cases in which there was no legitimate reason for the jury to hear large total revenue figures, in this case “there was no smallest salable patent-practicing unit, and the total revenue was an appropriate base that the jury needed to hear to understand Plaintiff’s damages expert’s analysis.” Id. at 596. For that reason, the court concluded, “I do not find the introduction of the total revenue figure to be so prejudicial that the damages verdict ‘cries out to be overturned.’” Id.


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