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May 29, 2008 12:13 PM

Howrey Loses $250 Million IP Verdict in East Texas

Posted by Nate Raymond

On Wednesday, a federal jury in the Eastern District of Texas gave a big win to hometown lawyer Sam Baxter of Dallas-based McKool Smith, awarding his client, Medtronic, $250 million in a patent infringement case against Boston Scientific. Howrey represented Boston Scientific.

The suit, filed in March 2006, claimed that certain Boston Scientific balloon catheters and stents infringed four Medtronic patents. Howrey won a summary judgment of non-infringement on one of the patents and a pre-trial dismissal of Medtronic's claim of willful infringement. But the jury ruled Boston Scientific had infringed the remaining three patents and threw out Medtronic's invalidity argument.

Boston Scientific’s loss comes despite a trend toward defense wins in the historically plaintiffs-friendly Eastern District of Texas. In 2007, defendants won seven out of nine trials. That trend seemed at first to be continuing this year--a jury in January found Alcatel-Lucent hadn't infringed Dell patents. But since then, plaintiffs have been on the rebound. To date, defendants have lost five out of seven patent trials in East Texas, according to Marshall-based attorney Michael Smith of Siebman, Reynolds, Burg, Phillips & Smith, who maintains a blog tracking happenings in the federal courts there.

Among the plaintiffs wins were a $21 million verdict against Nintendo for Anascape in May and a $66 million award for Grantly Patent against Clear Channel Communications in April. Rembrandt Vision Technologies, L.P. won $41 million from CIBA Vision Corp. in February. (Smith notes that the Nintendo got a non-infringement finding on its major product.)

But no defendant has been hit as hard as Boston Scientific which suffered a previous $501 million judgment in February. Kenyon & Kenyon was counsel in that one.

Baxter, who couldn't be reached for comment, in recent years has increased his share of defense side work, but is most prominently known for his work for plaintiffs. He scored praise in April 2006 after working alongside Irell & Manella partner Morgan Chu in the $73.9 million patent trial win for TiVo Inc. over EchoStar Commuinicsions Corporation. But as defendants rebounded, Baxter found himself on the losing side occasionally: In November, a McKool Smith team that included Baxter lost a case brought by client Acacia Research Corporation against Microsoft Corporation seeking $600 million to $900 million in damages after Acacia's patents were declared invalid. 

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Does anybody know how the jury determined reasonable royalty in Medtronic v. Boston Scientific? Or what the damages arguments were?

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