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Entrepreneurs Michael Finney and his brother, John, founded MJ Research 17 years ago, in a Massachusetts attic. Today it commands a 30 percent share of the worldwide market for machines that separate DNA molecules with precision heating and cooling for sequencing and medical research. Headquartered in Waltham, Mass., the company claims one of its powerful thermal cycling instruments “proved to be the workhorse that powered the completion of the human genome.” But in a patent infringement suit waged in the U.S. District Court in New Haven, Norwalk-based Perkin-Elmer and other plaintiffs last month secured a $19.8 million verdict against the Finneys and MJ Research. Or was it $17.8 million? It took over three weeks to find out. Often, a “decision tree” verdict form can give great insight into how a jury reached its conclusions. But it can also create enough ambiguity to threaten the validity of the entire verdict, as it did in this case. But in an April 26 opinion, Judge Janet Bond Arterton concluded that the full verdict must be preserved for Applera Corp., Perkin-Elmer’s successor, and co-plaintiff Roche Molecular Systems Inc. The jury had presented its verdict with the check-marked interrogatories that traced its findings of liability. First, it found infringement of a process patent claim, and infringement on 15 of 21 alleged thermal cycler patent claims. Next, the jury was asked to find whether one or both of the Finneys induced the infringement. Both “yes” boxes were checked. The final question asked for the proven “total amount of infringement damages” The jury divided the damages for four categories of patents over three columns for the company, Michael Finney and John Finney. The columns totaled $17,820,000 for the company, and $990,000 each for both individuals. Defense lawyers contended the $17.8 million represented the total damages, and inclusion of smaller amounts for the individuals illustrated their lower fractional liability. After conferring with the parties’ counsel, Arterton excused the jury with instructions to return April 15. Jurors duly deliberated again, were polled and confirmed that the numbers needed to be added up. Their verdict was accepted and entered. But the arguments didn’t stop there. The next day, defense lawyer C. Allen Foster, of Greenberg Traurig’s Washington D.C. office, e-mailed Arterton a letter contending “the only possible explanation for the jury’s assessment of damages is that they did not find that the Finneys induced any direct infringement and that they only induced the infringement by some, but not all, of MJ’s customers.” The plaintiffs proved they lost unpaid royalties from both MJ and its gene-splitting customers for the unlicensed use of Perkin Elmer’s patented processes. The jury, in previous questions in the verdict form, had never stated the Finneys induced all of the infringement — which is “a prerequisite for joint and several liability. …,” Foster wrote. Three days later, Matthew D. Powers, of Weil, Gotschal & Manges, e-mailed a letter summarizing the plaintiffs’ view. The jury form asked whether “any part” of the infringement was induced by the Finneys. The “yes” answer to “any part” does not “support an argument that the Finneys necessarily induced less than the whole, particularly where the jury was not sensitized to this possibility,” he wrote. The defendants were confusing apportionment of damages with findings of liability, Powers contended. Arterton considered the e-mailed arguments. In her decision, she noted the jury had received no instructions on joint and several liability — the doctrine that each defendant is liable for the general verdict amount, regardless of proportionate fault. “Because each individual defendant was found to have induced the infringement found by the jury, all three defendants are jointly and severally liable for the total $19,800,000 award,” Arterton concluded. As the case went to the jury, MJ Research filed for Chapter 11 reorganization in Nevada. The same jury is scheduled to return in July for a second and final phase of antitrust counter-claims against Perkin-Elmer and its successors, challenging its licensing scheme. There are 54 attorneys who have filed appearances in this case. Connecticut plaintiffs’ counsel include James Sicilian, of Hartford-based Day, Berry & Howard, and James T. Shearin of Pullman & Comley’s Bridgeport office. Harold B. Finn III, of Stamford’s Finn, Dixon & Herling, is among the lawyers for MJ Research.

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