Showing posts with label patent. Show all posts
Showing posts with label patent. Show all posts
Thursday, May 4, 2017
Judge Posner Questions Whether Owner of Patent on Heart Healthy Cookies Would Be Entitled To Nontrivial Damages
Judge Posner Questions Whether Owner of Patent on Heart Healthy Cookies Would Be Entitled To Nontrivial Damages
Last year I reported that Brandeis University had joined its exclusive licensee GFA Brands in suing a number of cookie companies for infringing its patents directed towards methods of "Increasing the HDL Level in the HDL/LDL Ratio in Human Serum by Balancing Saturated and Polyunsaturated Dietary Fatty Acids." The case is being heard by Judge Richard Posner in the Northern District of Illinois. On March 16, Judge Posner issued an interesting order in the case, ordering the parties to brief the issue of whether plaintiffs, if successful, would be entitled to nontrivial damage awards. Here is the order:
“I am concerned whether the plaintiffs if successful in establishing liability will be entitled to nontrivial damages awards. Suppose the defendants infringed the asserted patents but that none of the defendants marketed its products as low in bad cholesterol (LDL) or high in HDL, or as having a high ratio of HDL to LDL; and suppose further that the defendants obtained no cost savings by infringing the patents rather than using some non?infringing recipe and that neither Brandeis nor its licensee GFA Brands lost any business as a result of the infringement. On those assumptions, would the plaintiffs have any claim for damages, whether compensatory or punitive, or restitution? I would like the parties to address this question in briefs filed simultaneously by close of business on April 2.”In other words, if the cookie manufacturers are not profiting from the healthy cookie recipe by using it to market their cookies, and the recipe does not cut their costs, then how has the patent owner been harmed, and what does Brandeis want the court to do? Perhaps the answer is that customers do pay a premium for healthier cookies, even if the cookie manufacturer does not use that information in marketing its products. And in any event, Brandeis/BFA would presumably like to get an injunction against the cookie manufacturers, as leverage to demand royalty payments, or to keep them off the market, thus reducing competition in the market for healthy cookies. But if the defendant cookie manufacturers do not profit from the technology, perhaps they will simply change their recipe, perhaps rendering their cookies less healthy but no less profitable.
Thanks to Docket Navigator for making me aware of this order.
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Thursday, March 30, 2017
Jury Finds ABI’s Sale of DNA Sequencing Reagents and Products Infringed Enzos Patent
Jury Finds ABI’s Sale of DNA Sequencing Reagents and Products Infringed Enzos Patent
On November 1, in the case of Enzo Biochem v. Applera (D. Conn. No. 04-00929), a jury found Applied Biosystems Incorporated (ABI) liable for directly infringing US Patent Number 5,449,767 by manufacturing and or selling reagent products used in DNA anaysis and sequencing. The jury also found ABI liable for inducing its customers to infringe the patent by selling DNA sequencing instruments and reagents. The jury found that ABIs infringement was not willful, but nonetheless awarded Enzo $48,587,500 in reasonable royalty damages.
The infringed patent claims certain chemical compounds useful as probes in DNA analysis, for example in DNA sequencing. The patent came out of research conducted in the Yale University laboratory of David Ward, and which the University exclusively licensed to Enzo. Initially, the District Court had on a motion for summary judgment ruled the patent invalid as anticipated by prior art, and indefinite based on the use of the claim language “covalently attached directly or through a linkage group that does not substantially interfere with the characteristic ability of the oligo- or polynucleotide to hybridize with a nucleic acid and does not substantially interfere with formation of the signalling moiety or detection of the detectable signal.”
However, in Enzo Biochem v. Applera, 599 F.3d 1325 (Fed. Cir. 2010) the Federal Circuit reversed, holding that with respect to anticipation Enzo had raised a genuine issue of material fact sufficient to survive a motion for summary judgment, and with respect to indefiniteness that the challenged claim language is not indefinite, and more particularly that the terms "hybridize" and “not interfering substantially” are not indefinite. This decision gained a lot of attention, with many people taking the position that the functional language used in the claim did not adequately apprise the public of the scope of these claims directed towards chemical compounds. It was thought that this case might be a good vehicle for the en banc Federal Circuit, or even the Supreme Court, to clarify the standard for satisfying the indefiniteness requirement, and perhaps raise the bar.
However, the petition for en banc rehearing and certiorari were both denied, and the case was sent back to the District Court for the jury to assess the validity and infringement of the patent. The jury found the claims not only to be infringed, but also rejected the anticipation and other validity challenges to Enzos patent.
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