After a second jury trial for patent infringement, Judge Griesa of the Southern District of New York granted defendant's motion for judgment as a matter of law as to non-infringement of the two patents in suit, in Hypoxico, Inc. v. Colorado Altitude Training LLC, No. 02-CV-6191, slip op. (S.D.N.Y. Aug. 28, 2012).  At issue were U.S. Patent Nos. 5,964,222 and 5,799,652 related to hypoxic room systems.  The Court had previously overturned the jury's verdict and reversed the fist jury's damages verdict of more than $4.3 million after a trial in January of 2009.  After the second jury found for plaintiff against all four of the accused products (one of which defendant did not contest infringement but had ceased sales of) and awarded $1 million in damages, the Court granted defendant's motion for judgment as a matter of law, holding that the jury did not have a legally sufficient evidentiary basis to find infringement of the three contested products.

Defendant moved in the alternative for a new trial.  The Court denied that motion, finding that two lawsuits were enough and the litigation should come to an end such that if plaintiff appeals and the Court is reversed, the jury's verdict will be reinstated.  The Court did, however, agree to conduct appropriate proceedings to determine the damages due for past sales of the uncontested product.