Sympathetic jurors...
After reading all the trial documents and reading the post here and on Investor IV, I have “backed into” what I believe might be the defense strategy. I believe the legal team had a three prong strategy included. I also believe that success would be any royalty of 5% or less. Winning the trial out right would be a huge morale triumph, but at the end of the day their goal is to minimize the financial impact to a very small royalty.
The first prong of the strategy is to convince the jury that the 414 patent is invalid – but this might prove difficult in that jury would have find it highly probable that the patent office was wrong. But during the invalid arguments the legal team was laying the ground work that Tercica and DNA are not to be trusted and a bully at times. The second prong of the strategy is to create a lot of doubt around the infringement so if the jury “must find” that Insmed infringed based on the jury instructions, not their own opinions, they would not be happy with the decision and feel sympatric towards Insmed.
I believe that in both the invalid and infringe defense arguments the legal team was setting the jury up for the royalty phase – obviously they wanted to win on either the invalid or infringement – but at the end of the day, they wanted to walk away with a very small royalty at worst. The royalty phase is very different, than the invalid or infringement phases, for the jurors is that there is no hard and fast and specific rules for the jurors. It is totally open to judgment and debate among the jurors, and I doubt and few if any of the jurors have real life experience in negotiating royalties. All it takes is one or two jurors who are sympathetic toward Insmed and who have the passion and desire to fight and they will push the deliberations to a small royalty. They will by fighting for a small royalty try to compensate Insmed for where they feel, regardless of jury instructions, that 414 is invalid and they had lots of doubts on infringement.
I work with organization dynamics and often facilitate difficult group decisions and know that the passionate and desire of a few can sway the masses. In our case I am betting on just one of two juror who believe that Insmed is innocent, or at least have been treated unfairly by both big business and the legal system.
We'll see this week!
