March 2012

Spotlight Info

In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No. 10-1510 (Fed. Cir. Feb. 10, 2012), the Federal Circuit affirmed the district court’s decision, ending a long saga between the parties that included an eighteen-year interference and two prior appeals to the Federal Circuit.  Over a lengthy dissent from Judge Newman, the Court found substantial evidence to support the jury’s verdict that the patent-in-suit was not invalid for improper inventorship, anticipation, obviousness, or lack of written description.  The Court also found substantial evidence supported the finding that W.L. Gore & Associates, Inc. (“Gore”) willfully infringed the patent-in-suit.  In light of this finding, the Federal Circuit held that the district court did not abuse its discretion in awarding enhanced damages and attorneys’ fees and costs amounting to over $390 million.  Moreover, in lieu of granting a permanent injunction, the Court affirmed the district court’s decision to grant an ongoing royalty ranging from 12.5% to 20% to compensate for Gore’s future infringement.  Although the dissent labeled the district court’s decision an “insult to [the] judicial process” (Newman Dissent at 21), the majority praised the district court’s
“well-reasoned and well-grounded opinions” (slip op. at 40), further noting that it could not ignore the long history of the case or revisit the facts anew.  See this month’s edition of Last Month at the Federal Circuit for a full summary of this decision.