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After a successful willful infringement verdict, which subsequently resulted in treble damages, the issue of willful infringement may not yet be decided. But the Federal Circuit's refusal to take the opportunity to provide guidance on the new “objective recklessness” standard for willful infringement set forth in In re Seagate, 497 F.3d 1360 (Fed. Cir. 2007), is not as significant as its holding on the cross-appeal issue of permanent injunction. Despite the Supreme Court's statements in eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006), the Federal Circuit held that exclusive licensees who do not practice the patented invention can be made whole through damages, making injunctive relief that much harder to get.
The Underlying Case
Dr. Jan Voda, a cardiovascular surgeon, invented a pioneering catheter shape for use in catheterization of the left main coronary artery. Previously, catheterization of the left main coronary artery was a risky procedure. The risk, aside from that of general surgery, was that dissecting or tearing of either the left main coronary artery or the aorta from which it branched resulted in almost certain death. If such a tear occurred, the patient had but 10 minutes to live with the only possible remedy being full open heart surgery.
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