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Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

From our founding in 1972, Fenwick has been committed to promoting diversity and inclusion both within our firm and throughout the legal profession. For almost four decades, the firm has actively promoted an open and inclusive work environment and committed significant resources towards improving our diversity efforts at every level.  MORE >

FLEX by Fenwick is the only service created by an AmLaw 100 firm that provides flexible and cost-effective solutions for interim in-house legal needs to high-growth companies.  MORE >

Fenwick & West handles significant cross-border legal and business issues for a wide range of technology and life sciences who operate internationally..  MORE >

At Fenwick, we are proud of our commitment to the community and to our culture of making a difference in the lives of individuals and organizations in the communities where we live and work. We recognize that providing legal services is not only an essential part of our professional responsibility, but also an excellent opportunity for our attorneys to gain valuable practical experience, learn new areas of the law and contribute to the community.  MORE >

Year after year, Fenwick & West is honored for excellence in the legal profession. Many of our attorneys are recognized as leaders in their respective fields, and our Corporate, Tax, Litigation and Intellectual Property Practice Groups consistently receive top national and international rankings, including:

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Federal Circuit Ruling Shows Appetite for Revisiting Willfulness

January 13, 2015

​Fenwick & West patent litigation chair Mike Sacksteder was quoted by Law360 regarding an appellate trend he said could “change the dynamic significantly" in many patent lawsuits.

Questions about the proper standard for “willful” infringement surfaced again in the Federal Circuit’s Jan. 13 decision in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc.

While concurring with the panel’s 2-1 affirmation of the lower court’s finding of willful infringement, Judge Todd Hughes also called for an en banc review of the Federal Circuit’s willfulness standard set by Seagate in light of two 2014 decisions from the U.S. Supreme Court.

"Now we have two judges who have clearly stated that the Seagate approach to willfulness needs to be revisited," Sacksteder told Law360, referring to a similar opinion from Circuit Judge Kathleen O'Malley in Halo Electronics, Inc. v. Pulse Electronics Corporation.

"The more buy-in you get,” Sacksteder continued, “the more likely the court is to take the issue en banc to address it."

According to Law360, if the Federal Circuit were to apply the Supreme Court’s April 2014 holdings from Octane Fitness and Highmark to the willfulness standard, it could become easier for patent owners to prove willful infringement and recover enhanced damages.

"If we do get a critical mass of Federal Circuit judges who think they need to address this issue, it could change the dynamic significantly in a lot of patent lawsuits," Sacksteder said.

He also noted the Federal Circuit agreed last month to an en banc review looking at whether a recent Supreme Court decision limiting laches defenses in copyright cases applies to patent cases as well.

"It shows the Federal Circuit is really paying attention to what the Supreme Court has done recently, and is starting to rethink what they've done in the past to make sure it's consistent with what the Supreme Court has done," Sacksteder said.

The full article is available through the Law360 website (subscription required).