Jury to Decide Subjective Willfulness Despite Court’s Determination of No Objective Willfulness

The court denied defendant's motion in limine to preclude evidence of willful infringement even though the court determined that defendant did not willfully infringe. "[T]he court finds that [defendant's] invalidity defense under § 103 is objectively reasonable. In particular . . . while the jury had sufficient evidence to find that the combination of the elements of [certain claims] were not obvious, the court finds this was a 'substantial question' and, therefore, plaintiffs have not met their burden of establishing that [defendant] willfully infringed the patent. . . . Despite this ruling, the court has also decided to permit the jury to resolve the so-called 'subjective' prong of the willfulness standard. This is being done solely to avoid the necessity of an additional trial should the Federal Circuit disagree with this court’s conclusion as to the objective prong, now that the jury has heard substantially, if not all, of the evidence necessary to reach this fact question."

Ameritox, Ltd. v. Millennium Health, LLC, 3-13-cv-00832 (WIWD April 17, 2015, Order) (Conley, J.)