A divided Federal Circuit Court of Appeals panel has upheld a jury verdict of patent validity and willful infringement and affirmed a district court’s decision to enhance the damages verdict, thus upholding an award in excess of $371 million and an additional award of $19 million in costs and attorney’s fees. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc., Inc., No 2010-1510 (Fed. Cir., decided February 10, 2012). The invention at issue, a prosthetic vascular graft, was subject to dispute by 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 involving both men.

According to the court, David Goldfarb tested the materials supplied by the defendant’s project manager, Peter Cooper, and determined the optimal microstructure configuration for its use as a blood vessel graft. Because Goldfarb was purportedly the first to reduce the invention to practice and because there was apparently no evidence that Cooper discussed with Goldfarb this configuration of the material, which the court majority found critical to the invention, the court found the patent valid and that the defendant willfully infringed it for years.  

The dissenting judge would have reversed, finding that “[t]he infringement trial was fraught with errors of law, misstatements of fact, and confessed perjury” by one of the witnesses. According to the dissent, this witness admitted under oath that he had lied in prior testimony and had falsified affidavits filed with the U.S. Patent Office to support Goldfarb’s patent application. The dissent also claimed that an individual who tests a material “provided to him for testing, in the test for which the material was provided, does not become the inventor of the material and the use for which he tested it, and does not thereby become the owner of the material with the sole right to the use he was invited to test.” This judge also noted that the jury was repeatedly told that Cooper and Goldfarb did not communicate and about other matters involving Cooper that he could not refute because he died before the infringement trial.