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Inc. v. Perrigo Co.

United States District Court, D. Massachusetts

April 24, 2017

BRIGHAM AND WOMEN'S HOSPITAL, INC. and INVESTORS BIO-TECH, LP.
v.
PERRIGO COMPANY and L. PERRIGO COMPANY

          MEMORANDUM AND ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE.

         All parties have filed a series of post-judgment motions. Defendants Perrigo Company and L. Perrigo Company (collectively, "Perrigo") renew their motions for judgment as a matter of law on all issues that were tried to a jury in late December 2016 and, in the alternative, move for a new trial. See Dockets ## 247, 249, 252, 255. Perrigo also moves for an extension of time to file a notice of appeal to the Federal Circuit. See Docket # 268. Plaintiffs Brigham and Women's Hospital, Inc., and Investors Bio-Tech, L.P. (collectively, "Brigham") oppose all these motions and also move for attorney's fees (Docket # 239) and enhanced damages (Docket # 244).

         I. Procedural History

         The court held an eight-day jury trial which concluded on December 14, 2016, with a jury verdict in favor of plaintiffs. See Docket # 222. Specifically, the jury found (1) direct, induced, contributory, and willful infringement by Perrigo of all asserted claims of U.S. Patent No. 5, 229, 137 ("the '137 patent"); (2) an effective priority date of March 1990; and (3) all asserted claims valid. It awarded Brigham $10, 210, 071 in damages[1] and rejected Perrigo's laches defense, finding that Brigham knew or should have known of their infringement claim against Perrigo as of August 11, 2008.

         On December 19, 2016, judgment was entered that simply stated that "[t]his action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdictJudgment entered for Plaintiffs." See Docket # 227.[2] The amount of damages was not included. Shortly after judgment entered, the parties filed a joint motion for extension of time for post-trial motions, seeking to extend the deadlines to file motions for judgment as a matter of law and/or new trial and motion for attorney's fees to January 24, 2017, which the court granted by endorsement. Docket ## 237 and 238. It was only after Brigham filed their oppositions to Perrigo's renewed motions for judgment as a matter of law, however, that the parties raised a potential conflict with the Federal Rules of Civil and Appellate Procedures regarding the timeliness of Perrigo's post-trial motions and notice of appeal.

         II. Discussion

         After the parties submitted their post-trial briefing regarding the timeliness issue, the court raised initial concerns about the judgment entered on December 19, 2016, specifically, whether it constituted a final judgment that would trigger the clock on the relevant procedural rules because it failed to include any damages, as well as the jury's special verdict on the several claims and defenses. It also failed to address the issue of enhanced damages that had yet to be decided. Accordingly, I requested the parties to submit supplemental briefing regarding these questions and, if necessary, the remedy. See Dockets ## 278 and 279. Thus, before addressing the post-trial motions, the threshold question to be resolved is whether a proper judgment was entered in this case.

         A. Final Judgment

         A "judgment" under the Federal Rule of Civil Procedure is "a decree and any order from which an appeal lies." Fed.R.Civ.P. 54(a). The Supreme Court has explained that "there is no statute or rule that specifies the essential elements of a final judgment, and [the] Court has held that '[n]o form of words and no peculiar formal act is necessary to evince [the] rendition [of a judgment.]" United States v. F. & M. Schaefer Brewing Co.. 356 U.S. 227, 233 (1958) (quoting United States v. Hark. 320 U.S. 531, 534 (1944)); see also Alloyd Gen. Corp. v. Blda. Leasing Corp.. 361 F.2d 359, 362 (1st Cir. 1966) (explaining that a final judgment is one that does not leave the suit pending for further proceedings and "clearly evidence[s] the district court's intention that it shall be its final act in the case").

         Perrigo contends that the December 19, 2016, entry is not a final and appealable judgment because it "did not expressly dispose of Perrigo's counterclaims of invalidity, non-infringement, and laches." Docket # 278, at 3. Perrigo also argues that the December 19 entry does not satisfy Federal Rule of Civil Procedure 58 because it is "incomplete" as it does not "identify which claims of the asserted patent were found infringed and not invalid and, as the Court pointed out, is silent on damages." Id. at 5-6.

         Although the judgment lacks the details found on the jury's special verdict form, Perrigo's assertion that the issues of non-infringement[3], obviousness, and laches remain outstanding and were not disposed of by the jury's verdict is incorrect. Here, the court instructed the jury to decide all three issues by answering the questions on the verdict form with no objections from Perrigo. Indeed, during Perrigo's closing argument to the jury, it re-iterated the court's instruction and explained that "if [Brigham's] delay [was] unreasonable and Perrigo was harmed because of that delay, then there can be no monetary damages and that's Perrigo's equitable defense of laches." Docket # 235, at 81:12-15. Perrigo explicitly acknowledged that the jury would have to decide whether "plaintiff's delay [was] unreasonable and was Perrigo harmed as a result of it." Id. at 81:24-82:1. Accordingly, "[t]he instruction [on laches] was not given to seek a merely advisory verdict on the issue. The jury rejected the defense." Simon Prop. Grp., L.P. v. mySimon. Inc.. No. IP 99-1195-C H/G, 2001 WL 66408, at *16 (S.D. Ind. Jan. 24, 2001). Likewise, Perrigo never objected to having the jury decide the question of obviousness. Here too, the jury found that Perrigo had failed to prove invalidity of any of the asserted claims of the '137 patent for both obviousness and anticipation, and thus rejected Perrigo's counterclaim. See Connell v. Sears. Roebuck & Co.. 722 F.2d 1542, 1547 (Fed. Cir. 1983) ("We hold that it is not error to submit the question of obviousness to the jury."); see also Wyers v. Master Lock Co.. 616 F.3d 1231, 1248 (Fed. Cir. 2010).

         Therefore, the only matter that remains outstanding is the issue of enhanced damages. Docket # 275, at 9:15. The Federal Circuit, however, has exclusive jurisdiction of "an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the [Federal Circuit] and is final except for an accounting." 28 U.S.C. § 1292(c)(2) (emphasis added). "The Federal Circuit has ruled that, as a result [of the § 1292 exception], claims for enhancement of damages do not have to be addressed in order to have a final judgment." Open Text S.A. v. Box. Inc.. No. 13-CV-04910-JD, 2015 WL 4940798, at *10 (N.D. Cal. Aug. 19, 2015) (citing PODS. Inc. v. Porta Star. Inc.. 484 F.3d 1359, 1365 n. 4 (Fed. Cir. 2007), appeal dismissed (Apr. 4, 2016)). Although Perrigo asserts that the December 19 entry does not qualify for the exception to the final judgment rule under 28 U.S.C. § 1292(c)(2), it fails to provide any support for this argument other than re-asserting that the entry "did not dispose of Perrigo's counterclaims of invalidity, non-infringement, and laches, and thus the § 1292 exception does not apply." Docket # 278, at 5.

         Moreover, it is difficult to accept in earnest Perrigo's argument that the "12/19 Entry [did not] constitute[] a final and appealable judgment such that it would trigger the deadlines for filing Perrigo's post-trial motions and Notice of Appeal, " Docket* 278, at 2, based on its actions. In particular, shortly after the jury returned its verdict, Perrigo sought entry of judgment from the court in order to "determine deadlines for post-trial motions, " Docket # 280-2, at 2, and then proceeded to act in accordance with an understanding that the judgment was final by submitting post-trial briefing. E.g.. Docket # 268, at 1 (explaining in its motion for extension of time to file notice of appeal that "[t]he Court entered Final Judgment in favor of Plaintiffs on December 19, 2016."); cf R.& M. Schaefer Brewing Co.. 356 U.S. at 235-36 (looking at "[t]he actions of all concerned" when determining whether the parties "understood the opinion to be the judge's .. . final judgment in the case").

         B. Post-Trial Briefing and Defendants' Motion to Extend Time ...


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