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Gore Must Pay $1B In Patent Saga

The Federal Circuit affirmed a lower court’s ruling that W. L. Gore & Associates Inc. willfully infringed C.R. Bard Inc.’s blood vessel graft patent, adding $205 million to the $854 million in damages Gore has already been ordered to pay Bard in the long-running case.

The Federal Circuit heard the case once before and used it to set a new standard for proving willfulness. U.S. District Judge Murguia held that Gore’s infringement was willful under the new standard the Federal Circuit agreed.

The court had held since a 2007 en banc decision that there is a two-prong test for establishing willfulness. First, a patentee must show that an accused infringer acted despite an objectively high likelihood that it was infringing and second, the patentee must show that this risk was known to the infringer.

Gore maintained that its infringement was not willful because it had a reasonable argument that one of its employees was a joint inventor of Bard’s patent and that the patent was invalid for failing to name him as a co-inventor.

The Federal Circuit rejected that argument, noting that prior litigation over the patent had “definitively held” that the inventor of Bard’s patent, Goldfarb, had developed the invention on his own, without assistance from Gore’s employee.

“Within the backdrop of the extensive proceedings prior to this litigation, therefore, we agree with the district court that Gore’s position was not susceptible to a reasonable conclusion that the patent was invalid on inventorship grounds,” the appeals court said.

In addition to affirming that Gore’s infringement was willful, the Federal Circuit on Tuesday rejected the argument the company raised at oral arguments in August that Bard did not have standing to bring the suit in the first place.

For more information, see Law360.

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