Potential New Barrier to Verdicts of Willful Infringement?

A finding of willful patent infringement can lead to an enhancement of damages, within the court's discretion. A successful claim of willful infringement requires proof of both: a) the infringer's objectively reckless infringement (an objective prong) as well as b) that the objectively defined risk was either known or should have been known by the infringer (a subjective prong). See In re Seagate Technology, LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007) (en banc). On June 14, 2012, the Federal Circuit ruled that the objective prong of the Seagate willfulness test, although admittedly potentially predicated on factual issues, is best decided by a judge, as a question of law, as opposed to a common practice of treating the entire question as one for the jury. Bard II.

Bard II is a complex case stretching back to 1974. It involves a 28-year patent examination and multiple prior Federal Circuit opinions relating to, inter alia, inventorship and patent ownership. In February 2012, the Federal Circuit affirmed the District of Arizona's finding that W.L. Gore willfully infringed Bard's patent and its award of enhanced damages in the amount of $371 million. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc. Inc., 670 F.3d 1171, 1178 (Fed. Cir. 2012) (“Bard I “). Gore sought rehearing of the trial court's willfulness analysis, which the Federal Circuit granted en banc, reconsidering the roles of
judge and jury in finding willfulness.