As we previously reported, on September 22, 2017, a Delaware federal jury awarded Amgen $70 million in damages after finding that Hospira infringed one of Amgen’s Epogen® (EPO) patents (the ’298 patent). Five days later, Hospira filed a motion under FRCP 50(a) for judgment as a matter of law that the accused batches manufactured by Hospira were protected under the § 271(e)(1) safe harbor, the asserted claims of the ’349 and ’298 patents were not infringed, the asserted claims of the ’298 patent are invalid, and damages can be no greater than $1.5 million per batch, if sold.
Amgen filed a short opposition on October 11, arguing that the Court had already denied Hospira’s motion under FRCP 50(a), and that any renewed motion made by Hospira must be under Rule 50(b). Amgen stated that it would more fully respond to Hospira’s anticipated Rule 50(b) motion, but briefly argued that substantial evidence supported the Court’s decision to deny Hospira’s motion under Rule 50(a).
Hospira filed a reply brief on October 18 in support of its Rule 50(a) motion. In particular, Hospira stated that it had properly/timely moved orally for JMOL prior to the Court submitting the case to the jury, first for non-infringement and damages on 9/19, and later renewing the first motion and adding safe harbor and invalidity issues on 9/22, but that the Court had requested briefing on the oral motions at a later point. Hospira therefore argued that its motion had been timely made, and there was no requirement that the motion must be briefed or decided prior to the case going to the jury. Thus, Hospira argued that the Court had not previously denied Hospira’s Rule 50(a) motion, and that its briefing was properly submitted.
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