Tuesday, December 23, 2014

Expert’s Use of Noninfringing Off-Label Sales in Lost Profits Analysis Precluded

The court granted defendant's motion to exclude the testimony of plaintiff's damages expert regarding lost profits testimony that included all sales of the accused drug product, including off-label use. "[E]ven where related actions by defendants may have cost a plaintiff a sale, only those leading to or qualifying as actual infringement can give rise to lost profits. . . . According to [plaintiff], all sales of [the accused drug product] should factor into a lost-profits analysis, even where only 66 percent of those sales resulted in infringement. Its stated reasons are that all such sales were made after [defendant] had marketed the drug in a way that promoted an infringing use and that [defendant] was legally prohibited from marketing it in any other way. . . . Presumably, on [plaintiff's] logic, the result would be the same even if only 10 percent of [the accused product sales] had actually resulted in infringement. . . . Absent some limiting principle, [plaintiff] would demand damages on 100 percent of sales even in those cases. . . . [T]here is no other coherent place at which to limit [plaintiff's] lost-profits damages than at the point of actual infringement."

Abbott Biotechnology Ltd. et al v. Centocor Ortho Biotech, Inc., 4-09-cv-40089 (MAD December 19, 2014, Order) (Saylor, J.)

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