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Who said tiny firms can’t score big — twice in a row? Patent boutique Isbester & Associates in Berkeley, Calif., surprised many with its $95 million win in May for Advanced Medical Optics Inc. in its patent infringement case against Alcon Manufacturing Ltd. But on Friday, U.S. District Judge Kent Jordan in Delaware not only upheld the jury’s findings, he increased the award to $213.9 million. In a case that even the judge called exceptional, the four-lawyer firm persuaded judge and jury that Alcon had intentionally copied several medical devices used in cataract surgery patented by AMO. What the win means in the long term for Isbester is some mitigation of skepticism the firm faces in a niche market dominated by big players. “[People] are surprised that we can handle a big client, and they need to be convinced that we can do the job,” said partner A. James Isbester, adding that the award demonstrates the firm can not only take care of the pretrial work but see a case through to the finish and make a splash “even against a very powerful opponent.” Attorneys with Kirkland & Ellis, Alcon’s outside counsel, said they were not authorized to publicly discuss the case. Alcon had made an attempt to curb the original $95 million jury award by arguing it had not been notified early enough of infringement and that AMO had not adequately marked its products with patent information. AMO moved to enhance the damage amount based on the jury’s ruling that Alcon’s infringement was willful. Jordan first sliced the damages award to $71.3 million, based on Alcon’s argument that AMO had not adequately marked its products. But then the judge went on to agree with the jury that Alcon’s infringement was willful and tripled the $71.3 million to $213.9 million in damages. “Alcon believed it was protected from trebling by having sought the opinion of counsel [on whether they were infringing], but the jury found it to be a post-hoc move,” Isbester said. “All the opinions in the world aren’t going to help you if the jury believes that you would have done what you did regardless.” The final judgment is expected to be around $220 million after interest and attorney fees — expected to be between $2.5 million and $4 million — have been calculated. The judge also ordered an injunction on Alcon’s sale of the products in question but stayed it pending the company’s appeal so as to not disrupt the market. Alcon and AMO are two of the biggest suppliers of medical equipment used in cataract surgery. “We had a great case with great facts, and that’s what drives the outcome if you have competent representation on both sides,” Isbester said.

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