In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc. 14-1114 – 2015-01-13, the Federal Circuit upheld a district court decision finding willful infringement. To find willful infringement, “a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007)(en banc). If the objective test is met, the patentee also must show that the objective risk was known or should have been known to the infringer. The Federal Circuit had previously remanded the present case because the district court failed to evaluate the threshold objective portion of the test. When assessing the threshold objective portion of the test, the accused infringer’s defenses must be taken into account.
On remand, the district court determined that there was an objectively high likelihood that Gore’s actions constituted infringement. In so finding, the court determined that Gore’s invalidity defense was not objectively reasonable. The Federal Circuit agreed, noting that Gore would have needed to raise new evidence or theories not previously considered to reasonably conclude that the patent was invalid.