Wednesday, 1 July 2009

"I think he should've shown a little more emotion"

Writing for today, Zusha Elinson ("Anatomy of a $1.67 Billion IP Verdict") discusses the massive US $1.67 billion patent infringement damages award in favour of Johnson & Johnson against Abbott Laboratories. The dispute related to Abbott's Humira arthritis drug which, J&J alleged, infringed its own Remicade product.

This account is more anecdotal than legal in its analysis, contrasting WilmerHale's William Lee ("one of the biggest names in intellectual property litigation", even though "Lee" is but three letters long) on Abbott's side with Woodcock Washburn's Dianne Elderkin for J&J. This gave a certain flavour to the Texas Federal Court drama, in which each out-of-towner was assisted by a local lawyer:
"The out-of-town lawyers -- Lee is from Boston, and Elderkin is from Philadelphia -- took about half an hour each, with the Texas lawyers finishing the last 15 minutes on folksy notes".
Precisely what were those "folksy notes"? And were they the subject of case management? We are not told, but presumably both parties thought it prudent to ensure those notes were struck, given that US patent infringement trials are heard before a lay jury. A neutral lawyer, not instructed in the proceedings but merely watching from the gallery, said that Lee's body language didn't help him connect with the jurors:
"He was very knowledgeable, but for about five or 10 minutes he stood there with his arms crossed while he was talking to the jury. I think he should've shown a little more emotion".
Aphorisms were much in evidence. Lee apparently alluded throughout the trial to the Chinese proverb, "Give a man a fish; you have fed him for a day. Teach a man to fish; and you have fed him for a lifetime", to persuade the court of his client's truly original role in developing the arthritis treatment. J&J retailiated with a quotation from the prophet Isaiah, asking the jury, "Come now, let us reason together", as they discussed the quantum of damages.

A side issue in this patent pageant was the quantum of damages. J&J sought massive damages on the ground that Abbott's sales of Humira came to some US$4.5 billion in 2008. J&J initially pressed for $2.2 billion, while Abbott's expert (of whom it was not recorded whether and, if so, how he swung his arms) put the damages at just US$200 million even if there had been infringement. The article continues:
"After five hours of deliberations, the jury went with the Johnson & Johnson lawyers, finding willful infringement and awarding $1.17 billion in lost profits and $504 million in royalties",
following which lawyers on each side gave "generic statements" to the press. Then, presumably, they all lived happily ever after ...

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