Typically, in patent infringement cases, the Federal Circuit only has jurisdiction to hear appeals from “final” judgments of the district courts (yes, there are always exceptions). Yesterday, the Federal Circuit issued an order sua sponte that it will decide whether it has jurisdiction to hear a patent infringement appeal from a district court decision that is final with respect to an infringement determination, but not yet final with respect to an accounting of damages or a determination of willfulness. Robert Bosch LLC v. Pylon Mfg. Corp.
At times, the district court will bifurcate a patent infringement trial into separate hearings on liability and damages and/or willfulness. In this case, the court entered a final judgment on the issue of liability, but had not yet determined an accounting for damages or made a determination as to whether infringement was willful.
As noted by Patently-O, the Federal Circuit’s precedent on this issue has not been clear. The court has now asked the parties to brief the issues for a special en banc argument. Because damages could arguably be called an “accounting,” the court has phrased two separate questions for the parties:
1.Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred?
2.Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided?