Is A Defendant A Willful Patent Infringer? Trial Courts Must Decide Whether The Actions Are Objectively Reasonable
By Mark McGrath
The Federal Circuit’s recent decisions have sought to address a number of issues relating to damages in patent cases. In its recent decision in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No. 2010-1510, ___ F.3d ___ (Fed. Cir. June 14, 2012), available at http://www.cafc. uscourts.gov/images/stories/opinionsorders/ 10-1510.pdf (“Bard”), the Federal Circuit made clear that the objective prong of the willfulness standard set forth in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc) (“Seagate”) is a question of law that may be based on mixed questions of law and fact, and that the determination of that prong is subject to de novo appellate review. While it will take some time to see the impact of Bard, the decision will have an impact on how the objective prong is determined and may make it more difficult for a patentee to obtain enhanced damages and attorneys’ fees. Click here to read entire article as published by The Metropolitan Corporate Counsel.