Just in time for the London 2012 Summer Olympics, the Federal Circuit, in Bard Peripheral Vascular v. W.L. Gore & Assocs., passes the torch from juries to judges on willful infringement determinations in patent litigation. With an en banc rehearing, the Federal Circuit authorizes judges to make the threshold objective determination on an infringers potentially reckless conduct required to establish willful infringement of patent claims. Patent owners pursuing potentially multiplied damages and attorneys fees, the bronze, silver, and gold medals that come with a finding of willful infringement in patent litigation, should keep the new audience in mind when deciding whether to move forward with willful infringement arguments.

Prior Willful Infringement Doctrine – Torch in Jury's Hands Originally

The Federal Circuit last made significant alteration to its analysis of willful infringement about five years ago in its previous In re Seagate Technology decision. In re Seagate first established the two-prong test for willful infringement that requires: (i) a patentee to show by clear-and- convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent; and (ii) the patentee to demonstrate that this objectively defined risk was either known or so obvious that it should have been known to the accused infringer. The Federal Circuit's establishment of this framework shifted the test for the willful infringement determination from a negligence-resembling duty of due care standard to a more onerous recklessness-based standard consistent with Supreme Court precedent in similar areas of the law. Notably, although the patentee must make this prong-one showing under a clear-and-convincing-evidence standard, the highest evidentiary standard in civil litigation, the determination of whether the evidence met the standard remains with the jury.