Bard Peripheral Vascular, Inc. v. WL Gore

39BARD PERIPHERAL v. WL GOREawarded enhanced damages and attorneys’ fees and costs;and Gore voluntarily chose to continue its post-verdictinfringement unabated. Id. at 13; see Amado v. MicrosoftCorp., 517 F.3d 1353, 1361–62 (Fed. Cir. 2008) (“Prior tojudgment, liability for infringement, as well as the validityof the patent, is uncertain, and damages are determinedin the context of that uncertainty. Once ajudgment of validity and infringement has been entered,however, the [damages] calculus is markedly differentbecause different economic factors are involved.” (citationomitted)). The court also considered other economicfactors, including that Bard and Gore compete directlywith respect to surgical grafts, Gore profits highly from itsinfringing products, Gore potentially faces stiffer lossesthat include a permanent injunction if Bard prevails in asecond lawsuit, and Bard seeks adequate compensationand lacks incentive to accept a below-market deal. Id. at13. Finally, the court reasoned that the value Gore addedto its VIABAHN® and PROPATEN® grafts that arebonded with heparin warranted lower royalty rates onthose products. Id. at 13. Based on the district court’sreasoning, the court did not abuse its discretion in settinga 12.5% to 20% royalty rate for the ongoing royalty onGore’s infringing grafts.Accordingly, the district court’s award of enhanceddamages, attorneys’ fees and costs, and an ongoing royaltyas described in thorough and well-reasoned orderswas not an abuse of discretion.CONCLUSIONFor the foregoing reasons, we affirm the judgmentthat the ’135 patent is valid and willfully infringed becausethe jury’s verdict is supported by substantial evidence.We also conclude that the district court did notabuse its discretion in awarding enhanced damages,