D. Del: Only Pre-Litigation Conduct Admitted for Willfulness, Despite Prliminary Injunction and CAFC Affirmance

Cordis Corporation v. Boston Scientific, et al., 1-03-cv-00027 (DED January 28, 2010, Memorandum Order)

In the litigation, the court made a preliminary finding of infringement against defendants, which was affirmed on appeal. The accused devices were not taken off the market, however, and the case proceeded to trial based on the court's finding, upon a more developed record, that genuine issues of material fact precluded entry of a summary judgment as to infringement. A jury ultimately determined that certain Boston Scientific products infringed Cordis' patents.

Cordis moved for willful infringement, and requested that the earlier court findings be enteresd as evidence of willfulness.  The court denied the motion:

It cannot be emphasized enough that the litigation process is a complicated one, comprising multiple steps and moved forward by multiple decisions, ranging from resolving a discovery dispute to a case-dispositive motion. Consequently, I am very uncomfortable with characterizing administrative and court decisions as "objective evidence" for presentation to a jury. As recognized by counsel, a jury is going to give such evidence great weight, even when the procedural and substantive bases for most such decisions will not be apparent to the jury. This strikes me either as the kind of evidence better suited for review by a court or as eliciting the kind of hindsight review that is so strenuously discouraged in other aspects of patent law. See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). Therefore, consistent with the reasoning of the Seagate decision as a whole (and its emphasis on prelitigation conduct), generally only evidence regarding the prelitigation landscape of the dispute will be admitted.

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Source: Docket Navigator