In BARD PERIPHERAL VASCULAR, INC. v. W.L. GORE & ASSOCIATES, INC., Appeal No. 2014-1114, the Federal Circuit affirmed the district court’s judgment that Gore willfully infringed BPV’s blood-vessel graft patent and the district court’s punitive damages award.

This case stems from a 1974 patent application that issued as a patent over 28 years later. In 2003, Bard Peripheral Vascular (BPV) sued Gore for infringing the patent, and a jury found the patent valid and willfully infringed. Gore appealed. In 2012, a Federal Circuit panel affirmed the district court’s judgment of willful infringement. The Federal Circuit denied review en banc, but granted rehearing to revise the parts of the opinion addressing willfulness. The panel then remanded the willfulness issue to the district court, which again found willful infringement. Gore again appealed. 

The Federal Circuit affirmed the willfulness judgment, holding Gore had not asserted reasonable grounds for invalidity or unenforceability and therefore had acted objectively recklessly. The Federal Circuit reviewed willfulness de novo, as a question of law. The majority found that, in light of the 40-year history of proceedings prior to this litigation, Gore was left with an “exceptionally circumscribed scope of reasonable defense.” To have a reasonable chance to prevail, Gore needed new evidence or new theories as to unenforceability, which it did not present. The majority affirmed the district court’s judgment of willful infringement and punitive damages award.

Judge Hughes concurred in the decision, but asserted the Federal Circuit should review its willfulness jurisprudence in light of recent Supreme Court cases. Judge Newman, in a strongly worded dissent, asserted the majority was too deferential to the district court and failed to review the question of willfulness objectively. The dissent also argued punitive damages are discretionary, even when willful infringement is found, and the equities in this case did not support the district court’s punitive damages award.