Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 682 F.3d 1003

Gore challenged the district court's willfulness ruling and sought rehearing; en banc review was granted to reconsider the willfulness standard.
The court modified its prior Bard opinion, vacating section E and the part of section F on enhanced damages and fees.
The panel held that the threshold objective prong of Seagate is a question of law based on mixed questions of law and fact, reviewable de novo.
Remand was ordered for the trial court to reconsider willfulness under the correct standard and in light of potential defenses.
Gore asserted defenses (inventorship, inadequate written description, obviousness, anticipation) that the trial court had not evaluated under the Seagate standard.
If JMOL of no willful infringement is granted on remand, the court should reassess enhanced damages and attorneys’ fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is Seagate’s objective prong a question of law subject to de novo review?	Gore argues the objective prong is a legal issue to be reviewed de novo.	Gore's position is not aligned with the court's prior approach that treated it as fact-intensive.	Yes; objective prong is a question of law, reviewed de novo.

Seagate Tech., LLC v. Wash., 497 F.3d 1360 (Fed. Cir. 2007) (establishes the two-prong Seagate test for willfulness)
iLOR, LLC v. Google, Inc., 631 F.3d 1372 (Fed. Cir. 2011) (objective baselessness standard analogous to Seagate; PRE discussed)
Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (U.S. 1993) (PRE: sham litigation analogy for objective baselessness; concurrence cited)
Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221 (Fed. Cir. 2011) (distinguishes between legal and factual aspects of defenses in willfulness)
DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314 (Fed. Cir. 2009) (ultimate judge determines willfulness when underlying facts are mixed)