Willfulness is something of a bête noir in patent law. By any objective measure, it's all but irrelevant to damages. Although 284 technically allows for up to treble damages, in practice the odds of any enhancement, even if the jury finds that infringement was willful, are no better than 10-20%.
But of course, this is not the whole story. The prevailing theory is that it is to plaintiffs' advantage to present a willfulness case in order to cast the defendant as the conniving villain rather than merely a competing manufacturer of dryer sheets or what have you. If nothing else, it makes for a more compelling narrative. And so, the parties will often devote significant resources to keep this objectively marginal issue in or out of the case.
Should all defendant's efforts to slay the issue fail, the last line of defense is typically a motion to bifurcate the issue for trial. This used to be fairly common in the District, with Judge Robinson in particular being a famous proponent of bifurcating damages and willfulness, but it's employed less frequently in recent years.
Last week, Judge Williams denied just such a request to bifurcate in Lindis Biotech, GMBH v. Amgen Inc., C.A. No. 22-35-GBW (D. Del. Nov. 18, 2024). I think it'll be a helpful cite for plaintiffs going forward because the case seemed about as bog-standard as you can get, with no particular factual issues that might set it out from the herd:
Specifically, the Court is not convinced by Amgen's contention that, without bifurcation, "human nature" means that juror sympathy will inevitably taint what should be an objective threshold assessment of direct infringement and invalidity." As noted above, "[t]he jury is presumed to take its role seriously and to carry out its fact-finding function competently and thoroughly." Further, even in "complex cases before juries," this Court "has found jurors well able to keep separate issues separate."
Moreover, "[w]e have long held that prejudice does not arise 'just because all evidence adduced is not germane to all counts."' "Rather, some exacerbating circumstances, such as the jury's inability to compartmentalize the evidence, are required." Contrary to Amgen's contention, absent such exacerbating circumstances, "[w]e must 'presume that the jury [will] follow[] such instructions' to 'compartmentalize the evidence."' In this case, Amgen "ha[s] failed to rebut that presumption."
Id. at 8-9 (internal citations omitted).
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