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Willfulness and Liability, Separate But Equal?

By Angie M. Hankins and Vivian Luo

The Court of Appeals for the Federal Circuit, sitting'en banc, recently held in Robert Bosch, LLC v. Pylon Mfg. Corp., __ F.3d __ , Case Nos. 2011-1363, 2011-1364, 2013 WL 2664281, at *13 (Fed. Cir. June 14, 2013) that the court has jurisdiction under 28 U.S.C. '1292(c)(2) to hear appeals from patent infringement liability determinations prior to a trial on damages and while willfulness issues remain outstanding. This article summarizes Bosch and highlights the practical implications of the Federal Circuit's decision.

In Bosch, the parties brought claims and counterclaims for patent infringement. Id. at *1. Prior to trial, the defendant moved to bifurcate the issues of liability and damages. The District Court for the District of Delaware granted the motion and stayed discovery on damages and willfulness, which it deemed a damages issue. Id. After a jury trial and entry of judgment on liability, the parties appealed. Id. The plaintiff filed a motion to dismiss the appeals, which was denied, and sought reconsideration of its motion, which was also denied. Id. The Federal Circuit sua sponte granted a rehearing en banc to consider whether the court has jurisdiction under Section 1292(c)(2) over appeals from liability determinations prior to a trial on damages and willfulness determinations. Id.

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