$70 Million Damages Award Trebled Due to “One-sidedness of the Case” and “Flagrancy” of Infringement

The court granted plaintiff's motion for enhanced damages because all nine Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992), factors favored trebling the jury's $70 million award and supplemental damages. "[Defendant] is a multi-billion dollar company with reported annual profits in excess of three-quarters-of-a-billion dollars. A $70 million verdict sounds large in the abstract, but in context, it may not be enough, without enhancement, to deter infringing conduct. . . . [T]his was not a close case. Every major decision -- from claim construction through post-verdict motions -- went against [defendant]. . . . [A]t no point during its 12-plus years of infringement did [defendant] take any remedial action to stop infringement or mitigate damages, including during the two-plus years covered by this litigation. In fact, to this very day, [defendant] continues to manufacture and sell the infringing products. . . . Because the Read factors so overwhelmingly favor enhancement, the real question here is not whether enhancement is warranted, but how much enhancement is appropriate. Given the one-sidedness of the case and the flagrancy and scope of [defendant's] infringement, the Court concludes that treble damages are appropriate here. . . . The last question in this case is whether [plaintiff] is also entitled to treble damages on the Court’s award of supplemental damages. The Court answers that question in the affirmative. . . . [T]here is simply no good reason not to treble the award of supplemental damages here when the Court has determined that treble damages are appropriate [pre-verdict] lost profits."

Stryker Corporation, et. al. v. Zimmer Inc., et. al., 1-10-cv-01223 (MIWD August 7, 2013, Order) (Jonker, J.).