Patent Economics

On March 17, 2017, Judge Bryson denied defendant Eli Lilly & Company (“Lilly”) motion to exclude a portion of plaintiff Erfindergemeinschaft UroPep GbR (“UroPep”) damages analysis.  Lilly argued that UroPep's analysis was faulty because it incorporated information about unpatented sales. The patent-in-suit is titled "Use of Phosphordiesterase Inhibitors in the Treatment of Prostatic Diseases" and issued on July 29, 2014.  Lilly markets and sells a Phosphordiesterase Inhibitor called Cialis®.  The U.S. Food and Drug Administration ("FDA") approved Cialis® to treat the signs and symptoms of benign prostatic hyperplasia ("BPH") on October 6, 2011. UroPep's economic expert calculated reasonable royalty damages using information about sales that took place before the patent-in-suit issued.  The expert first computed Lilly's incremental revenues due to sales of Cialis® for the BPH indication by comparing sales of Lilly's Cialis® before ...

Image: TRX training equipment Judge Freeman denied defendant WOSS’ Motion in Limine to exclude plaintiff TRX’s damages expert.  WOSS moved to exclude TRX’s expert with respect to both lost profits and reasonable royalty damages. WOSS argued that TRX’s lost profit calculations were improperly based on the price of TRX’s entire product rather than just the patented components.  WOSS further argued that TRX’s lost profit calculation made the unsubstantiated assumption that TRX’s products practice the claimed invention. Judge Freeman denied WOSS’ motion with respect to lost profits on both points.  First, she ruled that TRX was not required to apportion in their lost profits analysis because the analysis was based on the Panduit factors.  Judge Freeman cited Brocade Communications Systems, Inc. v. A10 Networks, Inc., 2013 WL 10601009, *2-3 (N.D. Cal. 2013) in support of this position.  Second, Judge Freeman pointed out that TRX need not sell patented artic...