Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The patents-in-suit relate to polymer compositions, specifically polyethylene.  Following a plaintiff verdict in the amount of $61,770,994.60, defendants move for JMOL and a new trial.  The claim that the patents-in-suit are invalid for lack of written description under section 112 is rejected based on expert testimony with ample evidentiary support, as is the claimed error on the jury instruction regarding section 112.  Defendants’ claim that there are multiple non-infringing alternatives to plaintiff’s product and the evidence of lost profits is speculative.  The court found that the alternative products did not have the same high performance properties and that the jury was entitled to credit the expert’s opinion on lost profits.  The court further finds there was sufficient evidence to support the infringement verdict, and that a jury instruction was not erroneous.  Defendants’ proposed instruction would have been redundant.  The challenge to expert testimony on cross-fractionation as being beyond the scope of the expert report also fails since it was a proper response to defendant’s expert’s testimony which also addressed that topic.