UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

Opinion No. 2010 DNH 134

HemCon, Inc.

O R D E R

Marine Polymer Technologies, Inc. accused HemCon, Inc. of

infringing United States Patent 6,864,245 (“the ‘245 patent”),

and summary judgment was entered in Marine Polymer’s favor on

infringement. The trial was bifurcated, and the jury considered

damages in the second phase. The jury awarded Marine Polymer

$29,410,246 as a reasonable royalty for HemCon’s infringement. 

HemCon now moves for judgment as a matter of law (“JMOL”) to

reduce the damages award or for a new trial on damages. Marine

Polymer objects.

Standard of Review

For procedural issues that are not unique to patent law, the

Federal Circuit applies the law of the applicable regional

circuit. i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 841

(Fed. Cir. 2010). Motions for JMOL, for remittitur, and for a

new trial are governed by the standard applied by the regional

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circuit. Id.; Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d

1301, 1309 (Fed. Cir. 2009); Shockley v. Arcan, Inc., 248 F.3d

1349, 1358 (Fed. Cir. 2001). Therefore, the law of the First

Circuit pertaining to JMOL, remittitur, and a new trial governs

here.

In considering a post-verdict motion for JMOL, the court

views the evidence in the light most favorable to the nonmoving

party. Costa-Urena v. Segarra, 590 F.3d 18, 26 (1st Cir. 2009). 

“Under Rule 50, the standard for a trial judge to grant a JMOL is

whether the jury would not have ‘a legally sufficient evidentiary

basis’ for its verdict.” Jennings v. Jones, 587 F.3d 430, 436

(1st Cir. 2009) (quoting Rule 50(a)). “[A] jury’s verdict must

be upheld unless the facts and inferences, viewed in the light

most favorable to the verdict, point so strongly and

overwhelmingly in favor of the movant that a reasonable jury

could not have returned the verdict.” Astro-Med, Inc. v. Nihon

Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (internal

quotation marks omitted). When a party moves for remittitur, a

jury’s verdict on damages stands unless the award was “grossly

excessive, inordinate, shocking to the conscience of the court,

or so high that it would be a denial of justice to permit it to

stand.” Id. (internal quotation marks omitted).

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The grounds for granting a new trial are broader than the

grounds for JMOL, encompassing any reason that was previously

used to grant a new trial. Id. (citing Fed. R. Civ. P.

59(a)(1)(A)). A new trial may be granted when the verdict is

against the weight of the evidence. Jennings, 587 F.3d at 436. 

In determining whether the verdict is against the weight of the

evidence, the court may consider the credibility of the witnesses

and weigh the evidence that was presented at trial. Id. The

court cannot order a new trial merely because the court disagrees

with the jury’s verdict. Id.

Discussion

HemCon argues that the jury’s damages award of $29,410,246

was not based on substantial evidence and should be reduced by

$26,666,713 to an award of $2,743,533. Alternatively, HemCon

asks the court to order a new trial on damages. Marine Polymer

objects and contends that the jury’s damages award was amply

supported by the evidence and is appropriate.

A. JMOL and Remittitur 

HemCon offers several theories in support of JMOL to reduce

the damages award. HemCon first contends that Marine Polymer

failed to present evidence at trial pertaining to a reasonable

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royalty for its sales to the military. HemCon also contends that

Marine Polymer’s expert witness failed to consider all of the

factors applicable to a determination of a reasonable royalty,

known as the Georgia-Pacific factors, which resulted in a flawed

opinion about the royalty calculation.

At trial, Marine Polymer claimed damages measured by lost

profits based on HemCon’s sales of infringing products to the

military and a reasonable royalty for HemCon’s civilian sales.

Alternatively, Marine Polymer claimed a reasonable royalty for

all sales. Marine Polymer presented evidence of damages through

its President and CEO, Sergio Finkielsztein, and its expert

witness, Dr. Christopher Vellturo. Dr. Vellturo gave his opinion

that Marine Polymer was entitled to lost profits of approximately

$66,000,000 for HemCon’s infringing sales to the military and to

a reasonable royalty, of $1,500,000, calculated at thirty

percent, for infringing civilian sales. Alternatively, Dr.

Vellturo calculated a reasonable royalty of thirty percent on all

sales for a total of $29,410,246, which is the amount awarded by

the jury.

HemCon presented evidence on damages through its expert

witness, Dr. Mark E. Meitzen. Dr. Meitzen gave his opinion that

Marine Polymer was limited to damages based on a reasonable

royalty. He determined a reasonable royalty rate of two to four

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percent on all infringing sales. Dr. Meitzen calculated the

damages award based on royalty rates of two to four percent,

using a tiered model where the percentage increased with the

number of sales. The total amount of reasonable royalty damages,

according to Dr. Meitzen, would be $2,767,589.

1. Rate Applicable to Military Sales

When the court denies a motion for JMOL made after the close

of the evidence, the moving party may renew the motion after the

jury’s verdict and may also request a new trial. Fed. R. Civ. P.

50(b). “It is well-established that arguments not made in a

motion for judgment as a matter of law under Rule 50(a) cannot

then be advanced in a renewed motion for judgment as a matter of

law.” Costa-Urena, 590 F.3d at 26 n.4. Therefore, a motion for

JMOL under Rule 50(b) is limited to the grounds raised in the

motion under Rule 50(a). Monteagudo v. Asociacion de Empleados

del Estado Libre Asociado de P.R., 554 F.3d 164, 171 (1st Cir.

2009). 

In its Rule 50(b) motion for JMOL, HemCon argues that Dr.

Vellturo based his royalty analysis on civilian sales of HemCon’s

infringing products but then, improperly, applied the same

royalty rate to military sales. As Marine Polymer points out,

HemCon did not raise that theory in its Rule 50(a) motion for

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JMOL at trial. Therefore, the new theory cannot be considered

here.

Even if HemCon had raised the theory at trial that civilian

and military sales must be considered separately to determine a

reasonable royalty for each, HemCon fails to show that the theory

has merit. In fact, HemCon’s expert, Dr. Meitzen, also

calculated damages based on a reasonable royalty for all sales,

military and civilian, without distinguishing between them. 

HemCon explains in its reply that it actually does not object to

one royalty rate for all sales but instead argues that particular

factors unique to HemCon’s military sales must be considered to

determine the applicable rate.1 Once again, HemCon relies on a

new argument that was raised too late.

2. Georgia-Pacific Factors

Reasonable royalty damages can be calculated based on

different approaches. Lucent, 580 F.3d at 1324. In this case,

1HemCon also argues that Dr. Vellturo specifically limited

his reasonable royalty calculation to civilian sales so that it

was improper to apply that rate to military sales. HemCon is

mistaken. Marine Polymer’s damages theory was that it was

entitled to lost profits for the infringing military sales and a

reasonable royalty for civilian sales but that, alternatively, it

was entitled to at least a reasonable royalty for all sales. Dr.

Vellturo’s opinions track Marine Polymer’s theory, and he gave

his opinion about a reasonable royalty for all infringing sales.

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Marine Polymer proceeded under “the more common approach, called

the hypothetical negotiation or the ‘willing licensor-willing

licensee’ approach, [that] attempts to ascertain the royalty upon

which the parties would have agreed had they successfully

negotiated an agreement just before infringement began.” Id.

(citing Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp.

1116, 1120 (S.D.N.Y. 1970)). 

The hypothetical negotiation model often uses the GeorgiaPacific factors to estimate a reasonable royalty. Wordtech Sys.,

Inc. v. Integrated Networks Solutions, Inc., --- F.3d ---, 2010

WL 2384958, at *9 (Fed. Cir. June 16, 2010); i4i Ltd. P’ship, 598

F.3d at 854; Minks v. Polaris Indus., Inc., 546 F.3d 1364, 1372

(Fed. Cir. 2008). The Georgia-Pacific factors, however, are not

prioritized, often overlap in the context of a particular case,

and do not all apply in every case. See ResQNet.com, Inc. v.

Lansa, Inc., 594 F.3d 860, 868-69 (Fed. Cir. 2010); State

Contracting & Eng’g Corp. v. Condotte Am., Inc., 346 F.3d 1057,

1072 (Fed. Cir. 2003).

HemCon argues that Dr. Vellturo’s opinion on a reasonable

royalty was flawed because he did not consider all of the

Georgia-Pacific factors in order. HemCon addresses all fifteen

factors, in order, arguing that the factors, properly considered,

favor Dr. Meitzen’s opinion about a reasonable royalty. HemCon

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also contends that Dr. Vellturo improperly analyzed the GeorgiaPacific factors that he did consider.

 Dr. Vellturo testified that he considered all of the

Georgia-Pacific factors but only testified in detail about those

which he considered to be applicable. Because a reasonable

royalty calculation need not be based on all of the factors nor

do the factors have to be considered in any particular order,

HemCon’s argument that Dr. Vellturo’s opinions are improper lacks

merit. Although HemCon disagrees with Dr. Vellturo’s analysis,

taking the evidence in the light most favorable to the verdict,

there was more than sufficient evidence to support the jury’s

decision.2

3. Calculation of the Award

HemCon asserts that the damages award should be remitted as

grossly excessive because it was improperly based on the entire

market value of the HemCon bandage. HemCon argues that Marine

Polymer did not prove that the entire market value was the

2In its reply, HemCon argued that its evidence at trial

showed certain results under several of the Georgia-Pacific

factors “[c]ontrary to Marine Polymer’s [a]ssertions.” For

purposes of a post-trial motion for JMOL, however, it is the

jury’s verdict that is pertinent to the analysis. The jury found

in Marine Polymer’s favor, and the court evaluates the evidence

in the light most favorable to that verdict. 

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appropriate royalty base and did not provide evidence of

financial or marketing dependence on the patented p-GlcNAc in the

bandages. Marine Polymer responds that it proved the market

value approach at trial and that both Dr. Vellturo and Dr.

Meitzen used the market value of HemCon’s products to calculate

the reasonable royalty awards. 

Use of the entire market value of an infringing product to

calculate a reasonable royalty award can be controversial,

depending on the amount of the market value and the royalty rate. 

See Lucent, 580 F.3d at 1339. When applicable, the rule allows

an infringement damages award to be based on market value of the

infringing product, which includes both infringing and

noninfringing features. DePuy Spine, Inc. v. Medtronic Sofamor

Danek, Inc., 567 F.3d 1314, 1331 (Fed. Cir. 2009). The entire

market value rule is appropriate for calculating damages when the

patent owner proves that the patent-related feature is the basis

for customer demand. Lucent, 580 F.3d at 1336; Bose Corp. v.

JBL, Inc., 274 F.3d 1354, 1361 (Fed. Cir. 2001).

A review of the trial transcript shows that Marine Polymer

presented evidence pertaining to the importance of biocompatible

p-GlcNAC in HemCon’s products and its significance to market

demand. Marine Polymer’s evidence showed that biocompatible pGlcNAc provided the high quality hemostatic properties of

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HemCon’s bandages. HemCon sought to undermine that evidence with

testimony from Dr. Meitzen, but Dr. Meitzen lacked information to

support HemCon’s theory that its manufacturing process rather

than the infringing p-GlcNAc component of its products fueled the

demand for its products.3 The verdict form did not include a

question about proof of the entire market value basis for a

damages calculation.

The record supports the verdict, which found damages based

on the entire market value of HemCon’s infringing products.

4. Amount of the Award

 In the context of arguing that Dr. Vellturo did not

properly address Georgia-Pacific factor fifteen, pertaining to a

negotiated royalty amount, HemCon contends that it was improper

to consider a royalty of thirty-four percent, which would not

allow HemCon any profit. To the extent HemCon intended to

suggest that the verdict was grossly excessive or monstrous, that

argument fails. See Monsanto Co. v. Ralph, 382 F.3d 1374, 1383

(Fed. Cir. 2004) (stating that “a verdict which is grossly

3For example, when asked whether HemCon’s products could

work for their intended purpose without the infringing

biocompatible p-GlcNAc component, Dr. Meitzen said: “I really

don’t know. Again, I have been led to believe that that might be

possible, yes.” 

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excessive or monstrous” will not be upheld). Although an

infringer’s anticipated profit may be a consideration in

determining a reasonable royalty, “the law does not require that

an infringer be permitted to make a profit.” Id. at 1384. In

addition, the verdict was based on a royalty of thirty percent,

not thirty-four percent.

Therefore, HemCon has not shown a basis to reduce the

damages verdict.

B. New Trial

As an alternative to a JMOL granting remittitur of the

damages award, HemCon asserts that it is entitled to a new trial

on damages because the jury’s verdict was not based on

substantial evidence. HemCon did not present a separate argument

in support of its request for a new trial. A court will grant a

new trial on damages only if the verdict is against the weight of

the evidence. Jennings, 587 F.3d at 436; see also Lucent, 580

F.3d 1301.

As is discussed above, the evidence at trial supports the

jury’s verdict. Therefore, HemCon failed to provide a basis to

grant a new trial on damages.

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Conclusion

For the foregoing reasons, the defendant’s motion for JMOL,

remittitur, and a new trial (document no. 337) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 3, 2010

cc: Julie M. Baher, Esquire

Celine Jimenez Crowson, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Raymond A. Kurz, Esquire

Lynda Q. Nguyen, Esquire

Keith B. O’Doherty, Esquire

Rebekah L. Osborn, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

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