Centocor v. Abbott (E.D.Tex.)
Abbott has two chances to block the $1.67 billion jury verdict while the case is still in the hands of E.D. Texas Judge Ward.
Inequitable Conduct: Because inequitable conduct is an equitable doctrine, it is determined by a judge. In this case, Judge Ward bifurcated the trial and will hold a one-day bench trial on inequitable conduct on August 4, 2009. On the 4th, parties will each have three hours of witness time and 25 minutes for argument.
Judgment Notwithstanding the Verdict (JNOV): This is unlikely in Judge Ward’s courtroom – especially here since the Judge has already denied Abbott’s motions for summary judgment.
On appeal at the Federal Circuit look for a number of different disputes, including:
- Priority dates and anticipation: Centocor’s patents claim priority to 1991 via a series of continuations-in-part, but the claims at issue were probably not enabled until a 1994 filing. In 1993, a foreign counterpart of the original application published - becoming prior art against the 1994 CIP filing. The appeal may focus on the symmetry (or lack therof) between enablement and anticipation.
- Damages: The damage calculation here is somewhat complex and could lead to important Federal Circuit precedent on lost profits