Bianco MD v. Globus Medical Inc.,2:12-cv-00147 (7/1/2014)
Judge: William C. Bryson
Holding: Ongoing royalty set at 5%
The jury in this case found that defendant Globus Medical, Inc. had misappropriated trade secrets belonging to the plaintiff. The jury rejected the plaintiff’s request for disgorgement of Globus’s profits on the devices that allegedly embodied the misappropriated trade secrets, but awarded him reasonable royalty damages in the amount of $4,295,760. That sum constituted 5% of the total “net sales” that Globus had earned prior to trial on the three products that were the subjects of the litigation.
After the trial the Court denied Dr. Bianco’s request for a permanent injunction but granted his request that the Court consider an ongoing royalty on the products in lieu of an injunction. The Court gave the parties 30 days within which to attempt to agree on an appropriate ongoing royalty rate, but they were unable to do so. The Court then held an evidentiary hearing on the issue of the ongoing royalty, and yesterday granted the plaintiff an ongoing royalty of 5% on Globus’s future sales of its products for a maximum period of 15 years from July 1, 2007.
The Court ordered further briefing on:
(1) whether the judgment should contain an award of prejudgment interest;
(2) if so, how prejudgment interest should be calculated and what the amount of the prejudgment interest award should be;
(3) the amount of taxable costs;
(4) how those costs should be allocated, given that neither party prevailed on all of the issues in this case; and
(5) the definition of “net sales” that the Court should incorporate in the ongoing royalties portion of the judgment.
It's status conference week in Marshall, with nonpatent cases up Monday afternoon, and patent cases yesterday afternoon. That means I spent this morning analyzing the settings to provide clients and cocounsel with information on time to trial and Markman, and other information on that status of the docket, as well as information on changes in procedures and forms.
Maybe I'm the only one that gets a little thrill out of adding more data points to a chart ... but I definitely do enjoy that little extra length on the trend lines. (I probably need a vacation).