Grant of Ex Parte Reexam Alone Does Not Preclude Willfulness Claim

The court denied defendant's motion for summary judgment of no willful infringement of plaintiff's flush valve patent based on the PTO granting defendant's ex parte reexamination request. "[Defendant] argues that its request was based on a reasonable theory – that [a prior art patent] teaches handles with a larger diameter than the diameter of the plunger, thereby allowing for two different axes of plunger travel. . . . [Defendant] concedes that the USPTO’s grant of a reexamination request is only a 'factor' to consider in determining whether an accused infringer acted in an objectively reckless manner. Given that the asserted [patent] claims survived the reexamination proceedings, this factor does not weigh exclusively in [defendant's] favor and cannot be dispositive as to whether [defendant] acted in an objectively reckless manner."

Sloan Valve Company v. Zurn Industries, Inc., et al, 1-10-cv-00204 (ILND November 20, 2013, Order) (St. Eve, J.)