Federal Circuit Sets Forth New Standard for Willful Infringement
By Jie Zhang – Edited by Jennifer Wong
Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., No. 2010-1050 (Fed. Cir. June 14, 2012)
The Court of Appeals for the Federal Circuit, in a 2-1 ruling following an en banc decision that sent the case back to panel for rehearing, partly reversed its earlier decision from February 10, 2012, which had affirmed the verdict of the District Court for the District of Arizona against W.L. Gore and had upheld the district court’s doubling of the jury’s damages award for willful patent infringement.
On panel rehearing, the Federal Circuit reaffirmed the validity of Bard’s patent but vacated its prior opinion on the issue of willful infringement. The Federal Circuit employed the two-prong test for willfulness. The court redefined the first prong of the test and held that the objective determination of the likelihood that a defendant’s conduct constituted infringement is a question of law for the court to decide. Only after the objective threshold is satisfied can the jury consider the subjective recklessness of the defendant’s actions. The court further stated that if the defendant has a reasonable defense or non-infringement theory, then the objective threshold is not overcome and there is no willful infringement. Thus, the court remanded the case to the district court to determine whether the objective prong of willful infringement is satisfied under this new standard and to reconsider whether the enhanced damages award is proper.
JOLT Digest previously reported on the Federal Circuit’s earlier decision in the battle between Bard and Gore. Thomson Reuters provides an overview of the case. Patently-O comments on the implications of the new standard. (more…)