Innogenetics, N.V. v. Abbott Laboratories - WilmerHale

Abbott could sell its product through 2019, even Abbott acknowledges that such futuresales would be subject to the running royalty, a compulsory license. We remand to thedistrict court to delineate the terms of the compulsory license, such as conditioning thefuture sales of the infringing products on payment of the running royalty, the 5-10 Eurosper genotyping assay kit. 9 V. JMOL of No Willful InfringementFinally, we turn to Innogenetics’ cross-appeal challenging the district court’s grantof JMOL, overturning the jury’s verdict of willful infringement. Under the standardrecently articulated in In re Seagate Tech., LLC, “proof of willful infringement permittingenhanced damages requires at least a showing of objective recklessness.” 497 F.3d at1371. “[T]o establish willful infringement, a patentee must show by clear and convincingevidence that the infringer acted despite an objectively high likelihood that its actionsconstituted infringement of a valid patent.” Id. “[T]he patentee must also demonstratethat this objectively-defined risk (determined by the record developed in theinfringement proceeding) was either known or so obvious that it should have beenknown to the accused infringer.” Id. Our review of the record does not indicate howAbbott’s development and sale of its genotyping products were at risk of an objectivelyhigh likelihood of infringement. Accordingly, we affirm the lower court’s grant of JMOLof no willful infringement.CONCLUSIONbe warranted in every litigated patent case. Cf. eBay, 126 S. Ct. at 1840 (noting thatpermanent injunctions are not to be granted as a matter of course in patent litigation).9An injunction delineating the terms of the compulsory license would permitthe court to retain jurisdiction to ensure the terms of the compulsory license arecomplied with.2007-1145, -1161 27