Originally published by the Los Angeles & San Francisco Daily Journal, July 23, 2013
The potential threat of treble damages and attorney fees awards for wilful patent infringement has always been a significant concern for companies accused of patent infringement, particularly since the willfullness determination was generally viewed as a factual question to be submitted to the jury.
The Federal Circuit's en banc decision last year in Bard Peripheral Vascular, Inc. v. W.I. Gore & Assocs., Inc., however, significantly altered the litigation landscape for such claims. It held that the objective prong of the wilfulness standard ― whether the accused infringer acted despite and objectively high likelihood that its action constituted infringement of a valid patent ― is a question of law for the judge, not the jury.
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