Assessment of lost profits and reasonable royalty damages in patent suit involving branded biologic drugs

On behalf of Teva Pharmaceuticals (Teva), a Brattle team assessed lost profit and reasonable royalty damages owed by Eli Lilly (Lilly) in a patent dispute involving Lilly’s Emgality, a branded biologic drug for the treatment of migraine headaches. Having infringed key Teva patents, Lilly launched Emgality in direct competition with Teva’s own branded biologic migraine drug, Ajovy. Thus, Brattle’s damages analysis focused on the role that payers/pharmacy benefit managers (PBMs) play in mediating competition among drug manufacturers. In particular, Brattle’s experts explained how the activities of payers/PBMs can impact drug manufacturers’ profits, both directly – through rebating requirements – and indirectly, through copay assistance programs and time-limited, full wholesale acquisition cost (WAC) buydown programs that cover the cost of units not paid for by insurance. The team also quantified these impacts using data on the parties’ experience in negotiating with individual formularies, as well as data from company financial records and strategic plans. Working closely with a legal team from Goodwin & Procter, Brattle assisted in securing a jury verdict that awarded Teva over $175 million in lost profits and reasonable royalty damages.