Brigham and Women’s Hospital v. Perrigo Co. (13-cv-11640).

Judge Zobel entered final judgment in accordance with the December 14, 2016 jury verdict and her April 24, 2017 Order. The final judgment included:

  • direct and indirect willful infringement of U.S. Patent 5,229,137;
  • ‘137 patent valid over the prior art of record;
  • Perrigo was not entitled to a laches defense because plaintiffs knew or should have known of infringement only as of August 2008, too recent for laches to apply;
  • Damages of $10,210,071;
  • Attorneys’ fees were not awarded, as the defense, while not successful, was not frivolous or vexatious, as Perrigo had investigated infringement and invalidity before filing its ANDA application ad Brigham’s corporate witness testified that it did not immediately bring suit for fear of losing royalties should the claims be found invalid; and
  • Enhanced damages would not be applied, despite the jury’s finding of willfulness, in part because the awarded damages were at the high end of those sought.

Judge Zobel’s April order was interesting in that she found that final judgment had previously been entered, triggering the timelines of Fed R. 50(b) and 59(e), which could not be expanded by the district court, despite her having granted a joint motion to extend the deadline. Thus, Perrigo’s renewed motion for judgment as a matter of law was not timely filed, and its notice of appeal was also late.

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