The Federal Circuit Court of Appeals en banc has determined that parties may appeal the liability issues in a patent infringement action even if the bifurcated damages issues have not been tried and they involve claims of willfulness. Robert Bosch, LLC v. Pylon Mfg. Corp., Nos. 2011-1363, -1364 (Fed. Cir., decided June 14, 2013).

Seven of the nine judges concluded that the exception to the final judgment rule in 28 U.S.C. § 1292(c)(2) allowing an appeal to the Federal Circuit from a patent infringement judgment that is “final except for an accounting” included those actions in which a trial on damages is pending. The court examined the history of what is meant by patent-infringement “accounting” in legislation and court rulings to hold that a trial on damages is an accounting under § 1292(c)(2). Five of the nine judges concluded that an accounting also includes the determination of willfulness. Thus, the court remanded the matter to a Federal Circuit panel to consider the merits of the liability issues on appeal while proceedings on damages issues remain stayed before the district court.