Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc.

Long contested patent with application filed on October 24, 1974 and patent finally granted on August 20, 2002. The challenge involves issues of inventorship, anticipation, obviousness, lack of written description and of willful infringement, enhanced damages, attorneys’ fees and costs, and an ongoing royalty.

W.L. Gore & Asssociates, Inc. (“Gore”) appealed the District Court’s decision that “found [U.S. Patent No. 6,436,135] willfully infringed and not invalid for improper inventorship, anticipation, obviousness, or lack of written description, and … awarded enhanced damages, attorneys’ fees and costs, and an ongoing royalty.” The Court of Appeals for the Federal Circuit found “substantial evidence to support the jury’s verdict of no improper inventorship, anticipation, obviousness, or lack of written description and of willful infringement, and the district court did not abuse its discretion in awarding enhanced damages, attorneys’ fees and costs, and an ongoing royalty.” The Court denied Gore’s argument that the inventorship was invalid due to not claiming a joint inventor finding that the challenger’s contribution was insignificant in quality when measured against the dimension of the full invention. In determining obviousness the court required factual inquiries into: “(1) the scope and content of the prior art, (2) differences between the prior art and the claims, (3) the level of ordinary skill in the pertinent art, and (4) secondary considerations.” Concerning willful infringement, “a patentee must show by clear and convincing evidence that the infringer acted despite an objectively likelihood that its actions constituted infringement of a valid patent.” In deciding to grant enhanced damages for bad faith a court shall consider the Read factors (see Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209, 1225 (Fed.Cir.2006)). AFFIRMED.