A Question Of Law

Patent lawyers generally salivate when the Federal Circuit (first stop for all your patent appellate needs) hands down an opinion. This past week was no exception, with the issuance of Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc. The upshot of Bard is that the “objective prong” of the test for willful patent infringement—was the defendant’s behavior objectively reckless?—must be considered a separate question of law to be determined by the trial court prior to submission to the jury of the question of whether the patent was willfully infringed.

As with many patent–related questions, the Federal Circuit speaks and the Eastern District of Texas gets the first chance to act. As reported by EDTexweblog.com, Judge Gilstrap applied the recent opinion in Bard to the trial in SSL Services, LLC v. Citrix Systems, Inc.—finding that the defendant’s actions were objectively reckless (a finding followed by the jury’s conclusion of willful infringement).

Mixed results no doubt await application of this new standard. On the one hand, many cases will be filtered out before reaching the jury (those in which the presiding judge determines there is no objectively reckless behavior). On the other hand, it is certainly a likely possibility that the jury’s role in determining willful infringement becomes a fait accompli once the judge concludes objective recklessness.

Posted by Stacy Stitham