Federal Circuit Issues New Standards For Determining Willfulness

This article previously appeared in Last Month at the Federal Circuit, July, 2012.

[Appealed from D. Ariz., Judge Murguia]

Judges: Newman (concurring-in-part and dissenting-in-part), Gajarsa (author), Linn

In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No. 10-1510 (Fed. Cir. June 14, 2012), the Federal Circuit vacated portions of its previous decision in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 670 F.3d 1171 (Fed. Cir. 2012), relating to willfullness. The Court held that the threshold objective prong of the willfulness standard enunciated in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc), is a question of law based on underlying mixed questions of law and fact, and is subject to de novo review. The Court remanded the issue of willfulness to the district court to reconsider its denial of JMOL of no willful infringement, with instructions that, if the court grants the JMOL, it should then reconsider its decisions on enhanced damages and attorneys' fees.

The Federal Circuit previously held that the district court was correct in its judgment and affirmed all of the conclusions reached by the district court. W.L. Gore & Associates, Inc. ("Gore") then filed a petition for rehearing and rehearing en banc, in which Gore again faulted the district court's willfulness analysis. Separately, an amicus brief in support of Gore's petition argued that the objective prong of...