IP Law Daily, PATENT—D. Del.: Jury award of nearly $26 million in fecal-transplant patent litigation affirmed, (Jun 11, 2026)

By Brian Craig, J.D.

The court declined to find that the patents are invalid but also declined to impose enhanced damages.

In an infringement case involving patents for fecal microbiota transplantations owned by Finch Therapeutics and the University of Minnesota, the federal district court in Delaware has refused to set aside a jury award of nearly $26 million against Swiss biopharmaceutical company Ferring Pharmaceuticals, while also entering an ongoing royalty rate of 5.5%. In deciding post-trial motions, the court sided with the jury and concluded that the patents are valid and that substantial evidence supports the jury’s finding of infringement. But without evidence of egregious or malicious conduct in a close case, the court declined to impose enhanced damages (Ferring Pharmaceuticals Inc. v. Finch Therapeutics Group, Inc., No. 1:21-cv-01694-JLH (D. Del. Jun. 10, 2026)).

The patent infringement case involves claims that relate to methods and systems for fecal microbiota transplantations (“FMT”). Swiss biopharmaceutical company Ferring Pharmaceuticals Inc. (“Ferring”) sells REBYOTA, a FMT therapy used for the prevention of recurrent C. difficile infections, which can cause life-threatening diarrhea. Finch Therapeutics Group, Inc. (“Finch”) and the University of Minnesota own U.S. Patent No. 10,251,914 (the ’914 patent), U.S. Patent No. 10,675,309 (the ’309 patent), U.S. Patent No. 11,541,080 (the ’080 patent). The ’914 relates to methods for transplantation of colon microbiota. The ’309 patent and the ’080 patent relate to an enema product and delivery system. Ferring sued Finch in 2021, seeking a judgment that REBYOTA did not violate patents owned by Finch and the University of Minnesota. Finch and the University of Minnesota brought counterclaims for patent infringement.

After a five-day jury trial in August 2024, the jury awarded damages against Ferring of $25,815,061, consisting of a $25 million upfront payment and $815,061 in running royalties. Following the jury verdict, the parties filed several post-trial motions. Ferring submitted a renewed motion for judgment as a matter of law on the issues of infringement, validity, willfulness, and damages. Finch and the university moved for enhanced damages, ongoing royalties, and supplemental damages.

Infringement. The court first concluded that substantial evidence supports the jury’s finding of infringement. The record contains evidence that healthcare providers administering REBYOTA directly infringe claim 7 of the ’914 patent. The record also contains evidence sufficient for a jury to find that Ferring intends and directs health care providers to use REBYOTA to treat recurrent C. difficile infections.

Patent validity. Next, the court concluded that the patents are valid. The jury heard evidence that it would not have been an obvious choice to include polyethylene glycol in an enema-delivered pharmaceutical composition to treat recurrent C. difficile infection because polyethylene glycol is a known laxative. The jury was entitled to rely on this evidence to conclude that Ferring had not met its burden to demonstrate obviousness.

Enhanced damages. While the court sided with the patent owners on infringement and validity, the court sided with Ferring on the request for enhanced damages. The case was close. Ferring presented reasonable non-infringement and invalidity theories at trial and proved invalidity for two claims. Without a finding that the behavior was egregious or malicious, or that Ferring concealed its misconduct, the court declined to impose enhanced damages.

Royalty rate. Finally, the court awarded a reasonable ongoing royalty rate of 5.5% to Finch and the University of Minnesota. The Federal Circuit has explained that the jury’s damages award is a starting point for evaluating ongoing royalties. The jury determined that the reasonable royalty included a $25 million lump-sum payment plus a running royalty of 5.5%. The jury’s award reflects its determination that the appropriate royalty structure should be frontloaded, with a large upfront payment and a smaller running royalty. Where the accused infringer will already be required to make a large upfront payment as part of its total reasonable royalty obligations, the court concluded it would not be appropriate to assume a second, post-judgment hypothetical negotiation involving different economic factors to set the ongoing royalty rate. While Finch and the University of Minnesota requested an ongoing royalty of 16.5% through the life of the patents, the court sided with the Ferring requested amount of 5.5% based on the jury’s findings and the evidence.

Therefore, the court largely sided with the jury’s findings and affirmed the damages award of nearly $26 million, plus interest, and an ongoing royalty rate of 5.5%.

The Case is No. 1:21-cv-01694-JLH.

Judge: Hall, J.

Attorneys: Mary W. Bourke (Womble Bond Dickinson [US] LLP) for Ferring Pharmaceuticals Inc. Jeffrey L. Moyer (Richards, Layton & Finger, PA) for Finch Therapeutics Group, Inc.

Companies: Ferring Pharmaceuticals Inc.; Finch Therapeutics Group, Inc.

Cases: Patent DelawareNews