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News of Monday's record-setting $1.67 billion patent verdict against Abbott Labs had patent lawyers slack-jawed across the country.
But perhaps even more surprising to some was the lawyer on the losing side: WilmerHale's William Lee, one of the biggest names in intellectual property litigation.
Lee and local co-counsel David Beck of Beck Redden & Secrest were trying to fight allegations that client Abbott's profitable arthritis drug Humira was infringing on rival Johnson & Johnson's IP. On Monday, they faced off in a federal courtroom in Texas in closing arguments with J&J's lawyers: Dianne Elderkin of Woodcock Washburn and local counsel Richard Sayles of Sayles Werbner.
The out-of-town lawyers -- Lee is from Boston, and Elderkin is from Philadelphia -- took about half an hour each, with the Texas lawyers finishing the last 15 minutes on folksy notes. With so much at stake, at least one courtroom observer was surprised by the dry style of Lee's closing.
"It was more like an argument you'd make to an appellate court than to a group of jurors," said Leon Carter, a Dallas trial lawyer who was one of just about 20 people watching the action from the gallery.
Carter, a Munck Carter partner, also said that Lee's body language didn't help him connect with the jurors.
"He was very knowledgeable, but for about five or 10 minutes he stood there with his arms crossed while he was talking to the jury," he said. "I think he should've shown a little more emotion."
The Abbott lawyers pressed the argument that Humira was entirely different from J&J's competing arthritis drug Remicade, made by a division called Centocor Ortho Biotech. They said that Humira didn't infringe and tried to invalidate the patent at issue, which Centocor had exclusively licensed from New York University.
They also tried to convince the jury that Abbott's drug came first, and Lee alluded throughout the trial to the Chinese proverb, "Give a man a fish; you have fed him for a day. Teach a man to fish; and you have fed him for a lifetime," to illustrate the idea that Abbott had taught the world about how to make the arthritis treatment.
J&J's lawyers weren't afraid to turn to aphorisms. In what observer Carter called a "fire and brimstone" closing, Dallas trial lawyer Sayles quoted the biblical prophet Isaiah, asking the jury, "Come now, let us reason together," as they discussed the huge damages in the case.
Sayles and Elderkin had the task of convincing the panel that the multibillion-dollar damages weren't absurd, since they were tied to Abbott's sales of Humira, which totaled $4.5 billion last year. They originally asked for $2.2 billion in damages. On the other side, an expert for Abbott put the damages at a much lower $200 million if in fact there was infringement.
After five hours of deliberations, the jury went with the Johnson & Johnson lawyers, finding willful infringement and awarding $1.17 billion in lost profits and $504 million in royalties. None of the lawyers involved in the case would comment, and both companies gave generic statements to the press.
A number of lawyers contacted for this story had one reaction to the verdict: wow.
The award broke the previous record, a San Diego jury's $1.52 billion verdict against Microsoft, in favor of Alcatel-Lucent. The Microsoft verdict was later tossed by the trial judge, and observers say the same could happen here. "There have been big damage cases before and judges tend to look rather hard at those," said Robert Goldman, a Ropes & Gray IP litigator in Palo Alto, Calif.
Observers from around the country were quick to point at another outsized IP verdict as more fuel for the patent reform fire.
"Damages is sort of the centerpiece of our patent reform debate, and the fact that this is the biggest award has got to raise the profile of the political debate over damages," said Mark Lemley, an IP law professor at Stanford, adding that he didn't know the facts of the case.
But Carter said that it shouldn't be seen that way.
"The outside world is going to think this is a runaway jury: 'It's the Eastern District of Texas.'" he said. "But it's not that much when you look at the sales."
