By Jason Rantanen
Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc. (Fed. Cir. 2015) 14-1114.Opinion.1-7-2015.1
Panel: Prost (author), Hughes (concurring), Newman (dissenting)
Professor Tom Cotter has an excellent write-up of this opinion over on his blog, Comparative Patent Remedies. The main issue involves willful infringement: applying the de novo standard of review to the objective prong of the willfulness inquiry, as per Seagate and the earlier Bard decision, the majority affirmed the district court’s conclusion that Bard willfully infringed because its noninfringement defense is not “susceptible to a reasonable conclusion of no infringement. ” Judge Hughes wrote separately to reiterate his “belief that the full court should review our willfulness jurisprudence in light of the Supreme Court’s recent decisions” in Highmark and Octane Fitness. Judge Newman dissented; in her view, the majority failed to apply the de novo standard of review required by Seagate; applying that standard, the district court erred. Judge Newman also questioned the imposition of double damages.
Judge Hughes’ concurrence, like Judge O’Malley’s concurrence in Halo v. Pulse last fall, suggests that the Federal Circuit remains divided on the appropriate legal standard for willful infringement post-Highmark and Octane Fitness. Panels remain bound by the de novo standard set out in Seagate, but Judges Hughes and O’Malley strongly believe that the court should reconsider that precedent. It may be only a matter of time before the Federal Circuit either addresses this divide en banc or the Supreme Court grants cert. It’s also possible that the Court will provide some guidance on the issue in Commil v. Cisco; we’ll know later this year.