Jury verdicts are fascinating with their simple power. The jury is not asked to provide a long winded studied response to the case but rather to provide very simple responses to very difficult and complicated questions. A lawyerly answer would be ‘its complicated,’ but that option is not allowed on the verdict form.
Masimo v. Philips involved a two week jury trial — two weeks of testimony where the two companies cross-asserted blood-oxygen monitor patents with competing experts at every front. Following that, the jury was given a simple form and it sided with Masimo to the tune of $466 million dollars for past infringement.
Joe Re led the trial team for Masimo.
What happened to the other sides cross- asserted patents? Invalid, non-infringed, or zero damages for some other reason?
Phillips two asserted claims in their one patent were unchallenged for validity, and Masimo was found to be not infringing directly, not be inducing infringement, and not be contributorily (is that a word?) infringing.
Page 6 of the jury verdict PDF linked in the article.
Congratulations to Joe Re!
This makes me wonder.
Did the jury just round off to the nearest dollar the exact amount of damages? Or were the correct, precise, and just damages — by pure chance — an exactly even dollar amount as happens in one percent of cases?
Damages only need to be reasonably precise.
Of course “reasonable royalties” are granted so often, which are never precise.
The damages phase of a patent litigation should probably be run like baseball arbitration. Each side submits its damages amount and reasoning. The jury is limited to selecting only one of the two amounts that it feels is best.
The parties are in the best position to assess the true worth of the patents (as are baseball owners and player agents in that venue). It tends to keep the parties reasonable, as opposed to hitting the lottery (unduly large or small awards).
I’m also pretty sure that neither the plaintiffs nor the defendants who litigate regularly would like this idea.
Interesting idea. Of course, you’d have to include an arbitration stipulation to no appeals of the amount.
Without that, most litigants would likely still not be reasonable.
That’s a lot of money.
Was this the price for many years of willful of infringement and/or is this just some exceptionally expensive and very popular drug?
Masimo makes $250 blood-oxygen monitors that you clip onto your finger, as well as $10,000 hospital units, and probably a lot more. I don’t know what was at issue in the case, but it struck me as an extraordinary large award as well. I wonder whether it survives appeal.
It cannot be willful infringement, that is increased by the judge, not the jury.
Jury assessment of patent damages is ridiculous …it should be done away with !!
http://2.bp.blogspot.com/-bBszbLWc_mI/US92-q–VPI/AAAAAAAAlv0/wT2OUC6nn28/s1600/dilbb.gif
I agree. Let’s give the judges complete and total power like they now have with 101 and Alice. The judge can just be the expert on everything and then just proclaim the number. They can write one or two sentences on how they feel about things and then pronounce judgment. I think we should switch to this type of system for criminal trials too. I think the judge should be able to dismiss charges based on their feelings about the defendant and situation. They can write a couple of pages and then just either execute the defendant (maybe just take out a gun and shoot them on the spot to save time), or the judge can just go un-cuff the defendant and tell them they are free.
Just think of all the time that would be saved.
What tends to be more ridiculous is actually the expert testimony offered by each side.
I agree that the expert testimony is ridiculous. But, then again, what we have is a system that needs mending and instead of mending it, we have people that just want to break it. Like in Alice 101.
I’ve always thought the solution is to have court appointed experts.
Experts get more money from the clients…
The courts won’t be able to afford them.
You know absolutely nothing about litigation, do you?
I know how experts get paid…
And they get paid more by direct client connection rather than appointed.
When paid by the clients there tend to be $500 per hour and up. (I seem to remember one in the SCO suit getting 1200/hour… But I can’t find the reference right now – but then I think they shopped around for the opinion they wanted.)
Well, one thing you said is wrong. Figure out which one.
Just remember – ordinary consumers will pay this $466M …
So what’s your alternative…? Just let infringers go?
Under the new Order as defined by Google any award is hurting innovation. People should be free to do whatever they want.
Sheesh anon! Get with it. The Age of the Google Order has arrived.
right, big companies shouldn’t have to pay their employees or suppliers either — otherwise all those costs just get passed on to consumers.
Cliff – Although it makes sense from an ‘invisible hand’ perspective that costs would get passed to the consumer, I don’t think we have evidence that it happens and I suspect that it is highly unlikely to happen here because we are talking about the hospital healthcare market where prices are generally hidden from the consumer and often bear little relation to the actual cost to deliver services.
Here, the payment is between marketplace competitors with P sending $$$ to M. This raises P’s costs and reduces M’s costs. So, to the extent that costs are reflected in pricing, the outcome here is indeterminate in that some products will be cheaper and others more expensive.
Except that M doesn’t lower its prices…
They stay the same, or even go up as there is less competition.
Even if nobody infringed and the patentee was successful in maintaining a monopoly, the ordinary consumer would still pay in the form of monopoly prices (and possibly in other ways as well).
I would write in the margin.
Teacher might slap your wrist with a ruler. =)
The juror’s oath to follow the court’s instructions might limit the liberties a juror could take while filling out the verdict form, I would think.
The bailiff also has fresh copies of the form just in case.
I was juror where we had to write on form like this in a civil case. I wasn’t the foreperson (as the judge told me that she would “let” me be on the jury despite being an attorney as long as I agreed not to take over.)
But, I think we would have gotten in a lot of trouble with the judge if we had “written” in the margins. She told us pretty clearly what to do. I wouldn’t have wanted to cross her. You might spend the night in jail.
“I wouldn’t have wanted to cross her. You might spend the night in jail.”
And then another until I got a decent sized margin! The media would hear of this anti-marginist judge and she can kiss her chances for reelection goodbye!
#rebeljuror
lol
Good luck with that. After one bend down and hold your ankles you may change your tone.
I would estimate that your chances of ousting an elected judge over such a trivial issue are, at best . . .
marginal.
;^)
“Stay between the lines. The lines are your friends. Stay . . . between . . . the lines.“
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