Yesterday, Thu., June 14, 2012, in Bard v. W.L. Gore, No. 2010-1510, the Federal Circuit (Newman (dissent-in-part), Gajarsa and Linn) clarified that the threshold objective recklessness prong of willfulness ultimately is a question of law for the court to decide based on mixed questions of law and fact that the Federal Circuit will review de novo. This case provides a good summary of the current willful infringement standard.
The Court reviewed the Seagate two prong willfulness standard: “[A] patentee must show by clear and convincing evidence that  the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent” and “[o]nce the threshold objective standard is satisfied, the patentee must also demonstrate that this objectively-defined risk … was either known or so obvious that it should have been known to the accused infringer.”
The Court ruled that the judge determines the threshold objective recklessness prong as a matter of law – to be reviewed de novo – though it may first send underlying facts or mixed questions of law/fact to the jury. The Court remanded for the district court to determine “based on the record ultimately made in the infringement proceedings, whether a reasonable litigant could realistically expect [its asserted] defenses to succeed.” If not, “only then can the jury’s subjective willfulness finding be reviewed for substantial evidence.”
Judge Newman dissented-in-part, because the objective recklessness prong could be decided in favor of defendant on appeal without a remand.