The Federal Circuit appeals court ruled today Bard Peripheral Vascular and David Goldfarb, M.D. are owed a billion dollars by W.L. Gore & Associates for willful patent infringement. The litigation has been going forever, and the decision today is the fourth by the Federal Circuit. The first was in 1998.
The big question answered the last two times is about how federal courts should decide if willful patent infringement has occurred. A strong and detailed dissent from Judge Pauline Newman says the majority got it wrong and doubling damages is “untenable.” A brief concurring opinion by Judge Todd Hughes says the appeals court should not review willful infringement decisions “de novo,” meaning from scratch instead of giving more deference to the decision of the trial court.
The majority on this opinion was evidently fed up with Gore arguing again that the wrong company filed the infringement lawsuit. In legal theory a claim that the wrong party is before the court, called lack of standing, can be made at any time. But after it’s been up to an appeals court and back down, and after conceding the trial court had jurisdiction, something different needs to be argued. New facts, new controlling legal decisions, or why the earlier decision was clearly wrong. Gore didn’t do that.
The big issue on the merits raised again by Gore is that Dr. Goldfarb is not the sole inventor of the patent. A Gore plant manager, Peter Cooper, was involved in supplying the Gore-Tex material Dr. Goldfarb was using. The material was supplied to researchers in other countries working with animals, and Mr. Cooper and Dr. Goldfarb have been butting heads before the USPTO and the courts ever since. The first two trips to the Federal Circuit are known as Cooper I and II.
The majority today says Mr. Cooper was not sufficiently involved in the conception of the invention patented by Dr. Goldfarb to be a joint inventor. The decision covers the evidence, and rejects the Gore argument, again.
Unless they can settle this dispute once and for all, there is just one court for Gore to turn to. A petition asking the Supreme Court to take the case is a foregone conclusion for a company faced with writing a billion dollar check.
I expect Gore’s petition must attack the Federal Circuit’s directions to trial courts about how to decide if a party is guilty of willful patent infringement. Throughout the Roberts Court era, the Supreme Court has issued rebukes to the Federal Circuit for directing the district courts to handle familiar kinds of issues in ways unique to patent cases.
Whether this will be another remains to be seen, but the Supreme Court denied certiorari Gore I in 2013. The issue there was the inventorship question, a fact noted in what just happens to be footnote number 1 of Chief Judge Prost’s well written majority opinion.