In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., the Federal Circuit indicated that the first and threshold prong of the willfulness analysis from In re Seagate (the objective recklessness prong) is a question of law to be determined by the Court and reviewed de novo on appeal.
The CAFC recognized that willfulness is a complex issue that contains both issues of law and fact, and even indicated that the court could rely on jury findings for underlying factual issues pertinent to willfulness. Nonetheless, the final outcome on the objective recklessness issue is for the court, not the jury, to decide. The CAFC noted that:
“[w]e believe that the court is in the best position for making the determination of reasonableness. This court therefore holds that the objective determination of recklessness, even though predicated on underlying mixed questions of law and fact, is best decided by the judge as a question of law subject to de novo review.”
Slip Op. at 6-7.
One interesting wrinkle on this decision is the impact it might have on whether defendants will be able to introduce evidence from reexaminations to defend against a claim of willful infringement. To date, many courts have barred reexamination evidence because it is not relevant and/or prejudicial, or that the varying burdens of proof on invalidity between reexamination and litigation might confuse the jury. At least some of these issues may now be able to be overcome if it is the court that deals with the objective reckless prong in the In re Seagate analysis.
The fallout from this opinion should be interesting.