Judge Stark recently issued his ruling on the issue of post-trial damages following a two-day bench trial. In June 2010, a jury found that the defendant’s products infringed the plaintiffs’ patents and awarded damages in the form of both lost profits and reasonable royalties for the period from March 2002 to December 31, 2009. The Court denied motions for judgment as a matter of law and a motion for a permanent injunction, and on appeal the Federal Circuit affirmed the judgment in all respects. The parties were then unable to agree on the amount of “supplemental damages” owed to the plaintiff for the period of January 1, 2010 to October 15, 2011, when the patents-in-suit expired. The Dow Chem. Co. v. Nova Chems. Corp., et al., C.A. No. 05-737-LPS Slip. Op. at 1-4 (D. Del. Mar. 28, 2014). Following a bench trial to determine the supplemental damages owed, Judge Stark found that the plaintiff was entitled to lost profits and reasonable royalties, accepting the plaintiff’s arguments as well as the plaintiff’s rebuttals to the defendant’s argument. Id. at 4-22. Judge Stark also found, however, that the plaintiff was not entitled to enhanced damages. The plaintiff requested enhanced damages for “willful post-judgment infringement during the sixteen months between when the Court denied [the plaintiff’s] request for a permanent injunction and the expiration of the patents-in-suit.” But as Judge Stark explained, “the grant of [the defendant’s] motion for summary judgment of no willfulness effectively decided this issue” and the “Court is not persuaded it should revisit the question.” Id. at 22.
Interestingly, Judge Stark also had to consider whether to stay entry or execution of the judgment until after completion of an ongoing reexamination of the patents-in-suit at the PTO. Although the defendant had already paid damages associated with the jury verdict, it argued that it should, at a minimum, pay the supplemental damages to an escrow account to mitigate the risk that it would be paying damages on patents that could be found invalid. Judge Stark acknowledged that these “arguments implicate potentially difficult questions. If the patents-in-suit are invalid, [the defendant] cannot infringe them, and should not have to pay [the plaintiff] anything further. But as of today the patents-in-suit remain valid . . . and weighing heavily against granting the requested stay, [the defendant] waited until very late in this litigation to initiate the reexaminations and to seek a stay. [The defendant] filed its petitions for reexamination of the patents-in-suit on December 17, 2012, more than seven years after this case was filed and more than two years after the jury’s verdict on infringement and invalidity. Under the circumstances, the Court believes the most appropriate exercise of its discretion is to deny the requested stay.” Id. at 23-24.