Replies to post #137066 on Biotech Values

[iwfal]

I doubt (do not know) that a court can impose royalties against an infringer for products that do not infringe.

Ok, I'll have to find the example or a similar one again. BUT your argument makes no sense to me from a practical standpoint. Virtually by definition in order to impose treble damages the courts have to be able to attack assets not directly part of the infringement. And it seems a fine line to say you can impose a 'wage garnishment' but not impose royalties. OTOH I am not sure I care whether it is one or the other - since it is such a fine line.

Assume the court enters that judgment. It will only operate while they use the MNTA patent. So they may stop selling after clearing out the inventory. Then restart selling once they can work around the patent.

Again disagree - you are viewing the royalties as compensation for ongoing infringement. Whereas I'd certainly hope that the courts would view it as an attachment of assets as compensation for ongoing and past damages that are unremediable by withdrawal of the infringing product. See my above argument.


Altogether I have no doubt that the court can impose 'garnishment of wages' types of penalties and whether that is set up as royalties or attachment of assets or ... doesn't matter to me. What is more of a concern in the CAFC rulings is that they seem oblivious to the damages induced by ignoring a patent. However the advantage that MNTA/NVS have in this case is their damages will be starkly obvious. Also note that it will be almost as obvious that withdrawal of the infringing product will not provide compensation to MNTA/NVS. Will MNTA/NVS get 3x damages? No, probably not. Will MNTA/NVS get compensation for unfixable damages in a way that A*/WPI cannot game? I don't know - but I'd be surprised if the district court didn't try. I think the CAFC is much more of a wild card - since they have a history of bizarre patent rulings. It is up to the MNTA lawyers to feed the right arguments to the DC to minimize the likelihood of such bizarreness.