But Judge Taranto pointed out that it’s Provisur’s obligation to show willfulness to justify the $10.5 million judgment, and that simply inferring that Weber didn’t take every step necessary to ensure that they weren’t infringing might not be enough.
“This is your burden … to establish willfulness,” Judge Taranto said. “You’re urging that a failure to do all that stuff is a basis or an inference that they, under the willfulness standard, knew, or it should have been obvious that they were infringing.”
U.S. Circuit Judges Kimberly A. Moore and Richard G. Taranto and U.S. District Judge Claire C. Cecchi sat on the panel for the Federal Circuit.
The patents-in-suit are U.S. Patent Nos. 7,065,936; 10,625,436; and 10,639,812.
Provisur is represented by Craig C. Martin, Sara T. Horton, Michael Babbitt, Ren-How Harn and Henry C. Thomas of Willkie Farr & Gallagher LLP.
Weber is represented by Daniel E. Yonan, Donald R. Banowit, William H. Milliken, Kristina Caggiano Kelly and Richard A. Crudo of Sterne Kessler Goldstein & Fox PLLC.
