Stryker Co. v. Zimmer Inc.

Whether the Circuit Court erred in applying a stringent two pronged framework for proving willingness for the purposes of showing willful infringement?

Petitioner and Respondent are the primary competitors for the production and sale of pulse lavage devices: medical equipment used for cleaning wounds and performing some orthopedic procedures. Petitioner filed for a patent on one such device in 1993, the first patent being issued in 2000. In 2008, respondent resumed sales of the previously recalled Pulsavac Plus. Petitioner sued in 2010, claiming aspects of the Pulsavac Plus infringed upon their patents.

Petitioner won all claims at trial, was granted lost profits, and treble damages for respondent’s willful infringement. Respondent appealed the decision, and using a strict framework for deciding “willfulness” in willful infringement, overturned the finding that respondent willfully infringed upon the patent. The remaining trial decisions were affirmed and now petitioner seeks review of Circuit Court’s “willfulness” framework in 35 USC § 284.

Circuit Court’s willfulness framework required patent holder to show forthwith that infringer’s defenses were objectively unreasonable and, if so, that infringer acted in bad faith. Petitioner argues that the Circuit Court’s framework for deciding willfulness is contrary to a decision by the Supreme Court turning down a similar framework for deciding a discretionary grant of attorney’s fees. Petitioner argues that such a framework undermines the very purpose of § 284 by allowing infringers to avoid repercussions by offering any remotely plausible defense. Petitioner argues for the broader discretionary standard employing clear and convincing evidence that was used at the trial level.