January 17, 2015
In Bard v. Gore (CAFC 2014-1114), the CAFC abandons all pretense of equitable rule of law by ignoring its own precedents and exercising biased caprice. In dissent, Judge Newman sharply points this out.
This case returns to the Federal Circuit on appeal of a district court decision on remand from an en banc decision of this court. The issue is willful infringement and its consequences, which this en banc court remanded for de novo determination as a matter of law, vacating the judgment entered on the jury verdict.
The panel majority, while mentioning that willful infringement is now a matter of law, does not undertake the required de novo review... In all events, the question as it relates to willfulness is whether the defense of invalidity could reasonably be raised, not whether it eventually succeeded... On the entirety of the premises and applying the correct legal standards, the judgment of willful infringement cannot stand.
Extensive precedent supports judicial refusal to enhance damages when the case is close and the equities counsel moderation, not punishment... Thus, regardless of whether willfulness was a supportable ruling, the doubling of the damages award is untenable.