Finding Of Willfulness Upheld Because Joint Inventorship Defense Was Not Objectively Reasonable

In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No. 14-1114 (Fed. Cir. Jan. 13, 2015), the Federal Circuit affirmed the district court's decision that the plaintiffs—Bard Peripheral Vascular, Inc. ("BPV") and Dr. David Goldfarb—had standing to sue, and upheld the district court's finding that W.L. Gore & Associates, Inc. ("Gore") willfully infringed U.S. Patent No. 6,436,135 ("the '135 patent").

The '135 patent discloses prosthetic vascular grafts that are made of highly expanded polytetrafluoroethylene ("ePTFE"). The ePTFE material was made of solid nodes of PTFE connected by thin PTFE fibrils. The distance between the nodes is referred to as the fibril length, and this distance is described as important to the suitability of the ePTFE material for use as a vascular graft. In 1980, Goldfarb entered into a license agreement with C.R. Bard, Inc. ("Bard Inc.") concerning the '135 patent application and any patents that subsequently issued. In 1996, Bard Inc. acquired IMPRA, which subsequently became a wholly owned subsidiary, BPV. Bard Inc. transferred its interest in the license agreement to BPV in September 1996.

In 2003, BPV and Goldfarb filed suit against Gore for infringement of the '135 patent. A jury found the '135 patent valid and that Gore willfully infringed. In 2010, the district court denied Gore's motions for JMOL, and this decision was upheld by the Federal Circuit in Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 670 F.3d 1171, 1193 (Fed. Cir. 2012) ("Bard I"). The Federal Circuit, sitting en banc, denied review but granted rehearing for the sole purpose of allowing the panel to revise the portion of its opinion addressing willfulness. The panel subsequently vacated the parts of its opinion discussing willfulness and allowing enhanced damages and attorneys' fees. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1005 (Fed. Cir. 2012) ("Bard II"). The panel also held that the objective determination of recklessnessas it pertains to the threshold determination of willfulnessis best decided by the district court as a question of law that is subject to de novo review on appeal. On remand, the district court found that Gore could not have "'realistically expected' its defenses to succeed" and denied Gore's JMOL on willful infringement. Slip op. at 4 (quoting Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., No. 03-0597, 2013 WL 5670909, at *12 (D. Ariz. Oct. 17...