Radware, LTD. et al v. F5 Networks, Inc., 5-13-cv-02024 (CAND August 22, 2016, Order) (Whyte, USDJ)
Wednesday, August 24, 2016
Defendant’s Knowledge of Notice of Allowance Alone Does Not Support Jury Finding of Willful Infringement
The court granted defendant's renewed motion for judgment as a matter of law that it did not willfully infringe plaintiff's patent following a jury finding of willful infringement because of insufficient evidence. "[T]he trial record contains insufficient evidence to support the jury’s willfulness finding, even under a preponderance of the evidence standard. It is undisputed that [plaintiff] never actively informed [defendant] of any of its patents or patent applications before [plaintiff] filed this lawsuit. . . . The only direct evidence that [plaintiff] offered to show that [defendant] was subjectively aware of [the patent-in-suit] before this suit commenced was a Notice of Allowance for [a defendant] patent sent to [defendant's] outside patent prosecution counsel [4 months before plaintiff filed suit], which [defendant's] outside counsel then forwarded . . . to [defendant's] in-house counsel. . . . [T]he Notice of Allowance did not discuss or attach the [patent]. . . . While the notice recited the name of the lead inventor of the [patent] — [plaintiff's CEO] — the notice made no mention of [plaintiff] itself. . . . To the extent that [plaintiff] argues that [defendant] or its outside counsel had a duty to review the [patent] when they saw its number listed in the Notice of Allowance, [plaintiff] is incorrectly suggesting that willfulness can be proven by negligence; the Supreme Court has ruled that 'intentional or knowing' infringement may warrant enhanced damages."