Innogenetics Appeals Its Win over Abbott
By Robert Dailey --
In two earlier posts (January 8 and January 12), we reported on
Innogenetics' $7 million victory after a jury found that Abbott had infringed Innogenetics' patent covering methods for HCV genotyping. The jury also found that Abbott's conduct had been willful. However, in a post-verdict
ruling, the District Court held that Abbott's conduct had not been willful as a
matter of law. Innogenetics is now appealing
that portion of the judge's ruling.
On first glance, this appeal may seem to be a long shot. At trial, Innogenetics proffered no evidence
of actual copying, instead showing only that
it would have been possible for Abbott to copy. Moreover, Abbott obtained multiple opinions as to the invalidity of the
Innogenetics patent.
Thus, the appeal appears to rest on the assertion that
Abbott proceeded in bad faith after learning of the Innogenetics patent. This argument has some merit. At trial, Abbott relied heavily on a
non-infringement argument, even though it had only sought legal opinions on
an anticipation defense. Abbott's
failure to gather opinions on non-infringement may indicate that its
solicitation of the opinion was merely a ceremonial act carried out to avoid
treble damages. Judge Crabb, however,
rejected this as a "red herring" since "one cannot infringe an
invalid patent." Abbott had made
full disclosure to outside counsel and had made an anticipation argument at
trial that tracked with outside counsel's opinion. According to the Court, that is sufficient to
avoid a charge of willfulness. In other
words, a defendant need not bankrupt itself seeking opinions on every potential
legal defense.
The District Court may have overstated the rule on
willfulness a bit, but it seems unlikely that the Federal Circuit will deem
this reversible error. In that event,
Innogenetics may simply be trying to beat Abbott to the punch on filing an
appeal. Abbott lost the case, after all. We'll have to wait and see how Abbott
responds to this aggressive strategy.
Innogenetics, N.V. v. Abbott Labs., No. 05-C-0575-C (W.D.
Wis.)
Click here
for Judge Crabb's opinion rejecting the jury's
willfulness finding.
Click here for the Reuters news report.
Robert Dailey, Ph.D., is a physical chemist and a third-year law
student at the University of North Carolina at Chapel Hill. Dr. Dailey
was a member of MBHB's 2006 class of summer associates.
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