Failure to Allocate Between Infringing and Noninfringing Sales of Accused Products Precludes Injunctive Relief

The court denied plaintiffs' motion to reconsider an earlier order denying as moot plaintiff's request for injunctive relief. Instead, the court granted defendants' motion for judgment as a matter of law that plaintiffs failed to establish liability under 35 U.S.C. § 271(f)(1) or § 271(a). "Although defendants did not deny that plaintiff had adduced evidence that some of the accused products included a substantial portion of components supplied from the United States . . . defendants argued that 'some' was not enough because plaintiff adduced evidence only as to defendants’ total worldwide sales, so defendants were entitled to judgment as a matter of law unless all of those sales fell under § 271(a) or (f)(1). . . . [P]laintiff argues that it is still entitled to one because it has proven that some of defendants’ sales of the accused products violated § 271(a) and § 271(f)(1). However, even if I agreed with plaintiff that some unspecified amount of defendants’ sales fall within § 271(a) or § 271(f)(1), plaintiff points to no findings by this court or the jury that would allow the court to determine what the proper scope of any injunction should be. . . . Plaintiff did not ask for a jury question on the extent to which defendants violated § 271(a) or § 271(f)(1) with respect to particular accused products. Plaintiff fails to explain in any of its briefs under what authority the court could issue an injunction in the absence of those findings."

Promega Corporation, et. al. v. Life Technologies Corporation, 3-10-cv-00281 (WIWD April 22, 2013, Order) (Crabb, J.).