For the first time, the Federal Circuit set standards on the objective-risk portion of a willful patent infringement analysis, holding that such analysis is a question of law to be resolved by a judge, subject to full review on appeal. In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., the Court granted Gore’s petition for rehearing en banc to reconsider the issue of willfulness and the standard of review applicable to it.
In 2007, the Court in In re Seagate Technology, LLC (here) established a two prong test for proving willful infringement, a finding of which allows an award of enhanced damages under 35 U.S.C. § 284. The Seagate test requires a patentee to show (1) “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent”, and (2) that this “objectively-defined risk . . . was either known or so obvious that it should have been known to the accused infringer.” In Bard, the Court noted that while Seagate established that an objective standard of recklessness applied to the willfulness determination, the application of this standard was left to future cases to develop.
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