Stryker Corp. v. Zimmer, Inc.

The U.S. Court of Appeals for the Federal Circuit issued a revised opinion in Stryker Corp. v. Zimmer, Inc.  In the revised opinion the Court added a footnote discussing the implications of recent Supreme Court jurisprudence to the standard of review of findings of willfulness under § 284.  Stryker Corp. v. Zimmer, Inc., Case No. 13-1668 (Fed. Cir., Dec. 19, 2014) (Prost, C.J.).

Previously, in addressing the issue of willful infringement, the Court reversed the lower court’s finding of willful infringement and award of attorneys’ fees, finding that the defenses asserted by the accused infringer were not objectively unreasonable, despite being unsuccessful at trial (IP Update, Vol. 18, No. 1). In making this finding, the Court stated that “[w]e have held that objective 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.’” To clarify the standard of review, the Court has now revised its opinion, including a new footnote 6, which states, “This court has not yet addressed whether Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), or Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1746 (2014), altered the standard of review under which this court analyzes the objective prong of willfulness. However, as the district court failed to undertake any objective assessment of Zimmer’s specific defenses, the district court erred under any standard of review and thus this court need not now address what standard of review is proper regarding the objective prong of willfulness.”

Practice Note:  In January of this year, in deciding a petition for en banc rehearing in Bard Peripheral Vascular, Inc. v. W. L. Gore & Assoc., Inc., (IP Update, Vol. 15, No. 2) the Federal Circuit was asked to consider the correct standard of review for willfulness under § 284 and whether the more differential standard that now applies to review of “exceptional” case under § 285 should also apply to findings of willfulness under § 284.  The new footnote in the revised Stryker Corp. opinion may be viewed by Gore as an opening in terms of a possible writ of certiorari.