Medical supply manufacturer W.L. Gore & Associates, Inc. has filed a petition before the U.S. Supreme Court seeking review of a Federal Circuit ruling remanding to the district court a long-running patent-infringement dispute over a prosthetic vascular graft, with instructions to reconsider its denial of W.L. Gore’s motion for judgment as a matter of law of no willful infringement. W.L. Gore & Assoc., Inc. v. C.R. Bard, Inc., No. 12-458 (U.S., petition for certiorari filed October 12, 2012). Details about the Federal Circuit’s ruling appear in Issue 37 of this Bulletin.

According to a news source, W.L. Gore contends that the Federal Circuit’s ruling makes it more difficult to prove that a defendant acted despite an objective risk that its actions constituted infringement. The appeals court held that “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.” And while the trial court may “allow the jury to determine the underlying facts relevant to the defense in the first instance, for example, the questions of anticipation or obviousness, . . . the ultimate legal question of whether a reasonable person would have considered there to be a high likelihood of infringement of a valid patent should always be decided as a matter of law by the judge.”

The dispute involves the man who made the graft and first conceived its use and the man who was asked to test the graft and was awarded the patent for it after a 28-year interference proceeding. The jury that found willful infringement awarded Bard Peripheral Vascular $185 million in damages. The district court doubled the damages verdict and added $19 million in costs and attorney’s fees. W.L. Gore reportedly argues that the Federal Circuit’s willful infringement standard expected a joint-inventor to meet the same standard as a sole inventor to prove willful infringement. Its petition apparently states, “In addition to its many legal defects, the Federal Circuit’s misinterpretation . . . will have a severe negative impact on scientific collaboration, recognized by Congress as ‘an essential pillar of the economy of the United States.’” See Law360, October 19, 2012.