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."

Radware, LTD. et al v. F5 Networks, Inc., 5-13-cv-02024 (CAND August 22, 2016, Order) (Whyte, USDJ)