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Federal Circuit

Court Acknowledges It Has Not Settled Proper Standard of Review for Willfulness After Highmark and Octane, But Decides It Unnecessary to Resolve Here

April 6, 2015

Federal Circuit

Court Acknowledges It Has Not Settled Proper Standard of Review for Willfulness After Highmark and Octane, But Decides It Unnecessary to Resolve Here

April 6, 2015

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Stryker Corp. v. Zimmer, Inc., __ F.3d ___ (Fed. Cir. Mar. 23, 2015) (PROST, Newman, Hughes) (W.D. Mich.: Jonker) (2 of 5 stars)

Federal Circuit denies rehearing en banc but issues revised opinion maintaining the same result as the original December 2014 panel opinion—affirming judgment of infringement and no invalidity, but reversing an award of treble damages because the defendant’s reasonable trial defenses precluded a willfulness finding under the “objective” prong.  The patentee had sought rehearing, arguing the Federal Circuit should have applied a more deferential standard of review, could have affirmed treble damages without finding willfulness, and should eliminate its two-prong test for willfulness after Highmark and Octane.

The panel did not address most of these arguments, and the only change it made to its opinion was to add the following footnote:  “This court has not yet addressed whether Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), or Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1746 (2014), altered the standard of review under which this court analyzes the objective prong of willfulness.  However, as the district court failed to undertake any objective assessment of Zimmer’s specific defenses, the district court erred under any standard of review and thus this court need not now address what standard of review is proper regarding the objective prong of willfulness.”  Slip op. at 18 n.6.


The opinions expressed are those of the author(s) and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes and is not intended to be and should not be taken as legal advice.

Related Tags

CAFC Summary
Federal Circuit
willfulness (no)
enhanced damages (no)

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Craig Countryman | Principal

Craig Countryman is a Principal in the Southern California office of Fish & Richardson and the Co-Chair of Fish’s Appellate Practice. Craig has been named a Law360 MVP for Appellate work, a Rising Star by Law360, and he has been selected for the “Top 40...

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