The Seventh Amendment Does Not Bar Pre-Verdict Supplemental Damages

In Bayer Healthcare LLC v. Baxalta Inc., No. 19-2418 (Fed. Cir. Mar. 1, 2021), the Federal Circuit reviewed many issues on appeal, including Baxalta’s Seventh Amendment challenge.

Baxalta argued that the district court violated the company’s Seventh Amendment right to a jury trial by awarding Bayer pre-verdict supplemental damages. The jury calculated damages between June 14, 2016 and November 30, 2018. The district court then awarded Bayer pre-verdict supplemental damages for the period between December 1, 2018 and the date the judgment was entered, February 8, 2019.

The Federal Circuit upheld the pre-verdict supplemental damages award. Although the Court noted that an additur would violate the Seventh Amendment, it found that the district court’s award was a proper damages award under 35 U.S.C. § 284, which gives the district court the ability to assess damages for the claimant that were not found by the jury. In awarding damages, the district court merely applied “the jury’s royalty rate to the undisputed actual infringing sales base” to calculate the damages. Slip op. at 32. Therefore, the district court’s pre-verdict damages award did not constitute “an impermissible additur or an otherwise ‘bald addition of something which in no sense can be said to be included in the verdict.’” Id. at 33.