A report from Law.com states that a New Jersey jury “returned an $11.8 million verdict in a patent infringement suit over an apparatus for applying flea and tick repellent to pets.” The patent at issue is US Patent No. 8,057,445, which relates to a “direct delivery applicator” for flea repellent. Apparently influential in the decision, Nite Glow cited evidence that it’s own product was used as prior art to reject defendant Central Garden’s own patent application. From the report:
When the defendant sought to patent its own, similar product, the U.S. Patent and Trademark Office rejected the application, finding it too similar to the plaintiff’s product, Nite Glow said in court documents.
What’s more, after it discovered that Central Garden was selling a similar product, Nite Glow’s attorneys emailed Central Garden to raise its patent infringement claim. Allen Simon, an executive of the defendant company, responded with an email of his own, sent to his boss, Frank Palantoni, that said, “everything in this e-mail is true,” according to a court filing.
In the face of this evidence, the differences argued by Central Garden’s attorneys, and their claim that any similarity was “the biggest coincidence in the world,” were insufficient. Ultimately, New Jersey jury agreed that New York-based Central Garden infringed the patent held by the Far Hills-based company.
However, closer inspection of the verdict form suggests, contrary to Law.com’s report, that the jury actually awarded over $12.6 M in damages. The jury appears to have decided that Central Garden’s infringing sales amounted to just over $11,006,000 and settled on a royalty rate of 7.5% for a reasonable royalty award of around $825,450. The jury then went on to award another $825,450 in damages for Central Garden’s breach of a confidentiality agreement. Finally, Nite Glow also brought a misappropriation claim. For this claim, the jury awarded $11,006,000–the exact amount it previously settled on as infringing sales.
In addition, the Law.com report states that Central Garden induced infringement of the ‘445 patent. However, the verdict from clearly shows that the jury sided with Central on inducement, but agreed that the defendant contributorily infringed the patent.