Federal Circuit Dissent Precludes Finding of Willfulness

The court granted defendant's motion for summary judgment that it did not willfully infringe plaintiff's patent because, on interlocutory appeal, a dissenting Federal Circuit judge opined that plaintiff's patent was invalid. "[I]n this case [a Circuit Judge] . . . dissented from the Federal Circuit's panel decision that upheld this Court's ruling as to the validity of the [patent-in-suit] -- in his view 'all of the claimed elements . . . were present in the prior art' . . . and 'the claimed invention is nothing more than a repetition of steps already known in the art' . . . [Plaintiff's] counsel misses the mark entirely in arguing that [defendants] 'did not and could not rely on either of these post-litigation factors when it began infringing the [patent-in-suit] -- the relevant point in time for determining its willfulness.' That is of course nonsense, for the key issue in the analysis is not the time sequence but rather the fact that the dissenting opinion conclusively establishes that [defendants'] non-willfulness argument cannot be viewed as objectively reckless."

Celsis In Vitro, Inc. v. CellzDirect, Inc., et al, 1-10-cv-04053 (ILND February 13, 2014, Order) (Shadur, J.)