United States Court of Appeals for the Federal Circuit

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1 United States Court of Appeals for the Federal Circuit No BARD PERIPHERAL VASCULAR, INC. and DAVID GOLDFARG, M.D., Plaintiffs/Counterclaim Defendants-Appellees, and C.R. BARD, INC., Counterclaim Defendant-Appellee, v. W.L. GORE & ASSOCIATES, INC., Defendant/Counterclaimant-Appellant. Appeal from the United States District Court for the District of Arizona in Case No. 03-CV-0597, Judge Mary H. Murguia BRIEF OF VERIZON COMMUNICATIONS INC., GOOGLE INC., AND INTEL CORP. AS AMICI CURIAE IN SUPPORT OF THE DEFENDANT/COUNTERCLAIMANT-APPELLANT S PETITION FOR PANEL REHEARING AND REHEARING EN BANC JOHN THORNE GAIL F. LEVINE VERIZON COMMUNICATIONS INC North Court House Rd. Arlington, VA (703) Counsel for Amicus Curiae Verizon Communications Inc. TINA M. CHAPPELL INTEL CORPORATION M/S: OC South Dobson Road (480) Counsel for Amicus Curiae Intel Corp. March 26, 2012 PAUL D. CLEMENT D. ZACHARY HUDSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) Counsel for Amici Curiae Verizon Communications Inc. and Intel Corp. MICHELLE K. LEE SUZANNE MICHEL GOOGLE INC Amphitheatre Parkway Mountain View, CA (650) Counsel for Amicus Curiae Google Inc.

2 Form 9 FORM 9. Certifi cate of Interest UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Bard Peripheral v. W.L. Gore No CERTIFICATE OF INTEREST Counsel for the (petitioner) (appellant) (respondent) (appellee) (amicus) (name of party) Amicus Verizon Commc'ns Inc. certifies the following (use None if applicable; use extra sheets if necessary): 1. The full name of every party or amicus represented by me is: Verizon Communications Inc. 2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is: Verizon Communications Inc. 3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are: None 4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are: Bancroft PLLC: Paul D. Clement; D. Zachary Hudson Verizon Communications Inc.: John Thorne; Gail F. Levine 03/26/2012 /s/paul D. Clement Date Signature of counsel Paul D. Clement Printed name of counsel Please Note: All questions must be answered cc: All Counsel 124

3 Form 9 FORM 9. Certifi cate of Interest UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Bard Peripheral v. W.L. Gore No CERTIFICATE OF INTEREST Counsel for the (petitioner) (appellant) (respondent) (appellee) (amicus) (name of party) Amicus Intel Corp. certifies the following (use None if applicable; use extra sheets if necessary): 1. The full name of every party or amicus represented by me is: Intel Corp. 2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is: Intel Corp. 3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are: None 4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are: Bancroft PLLC: Paul D. Clement; D. Zachary Hudson Intel Corp.: Tina M. Chappell 3/26/2012 /s/paul D. Clement Date Signature of counsel Paul D. Clement Printed name of counsel Please Note: All questions must be answered cc: All Counsel 124

4 Form 9 FORM 9. Certifi cate of Interest UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Bard Peripheral v. W.L. Gore No CERTIFICATE OF INTEREST Counsel for the (petitioner) (appellant) (respondent) (appellee) (amicus) (name of party) Amicus Google Inc. certifies the following (use None if applicable; use extra sheets if necessary): 1. The full name of every party or amicus represented by me is: Google Inc. 2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is: Google Inc. 3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are: None 4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are: Google Inc.: Michelle K. Lee; Suzanne Michel 03/26/2012 /s/michelle K. Lee Date Signature of counsel Michelle K. Lee Printed name of counsel Please Note: All questions must be answered cc: All Counsel 124

5 TABLE OF CONTENTS CERTIFICATES OF INTEREST TABLE OF AUTHORITIES... ii INTEREST OF AMICI CURIAE... 1 ARGUMENT... 1 CONCLUSION...10 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE i

6 TABLE OF AUTHORITIES Cases Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852 (Fed. Cir. 1999)...10 Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No , slip op. (Fed. Cir. Feb. 10, 2012)...1, 2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989)... 8 Cloaninger ex rel. Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009)... 6 Cohesive Technologies, Inc. v. Waters Corp., 543 F.3d 1351 (Fed. Cir. 2008)... 3 Colston v. Barnhart, 146 F.3d 282 (5th Cir. 1998)... 6 Comark Commc ns, Inc. v. Harris Corp., 156 F.3d 1182 (Fed. Cir. 1998)... 2 DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314 (Fed. Cir. 2009)... 3 Dominant Semiconductors Sdn. Bhd. v. OSRAM Gmbh, 524 F.3d 1254 (Fed. Cir. 2008)... 6 Ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)... 8 Engleman v. Deputy Murray, 546 F.3d 944 (8th Cir. 2008)... 6 FilmTec Corp. v. Hydranautics, 67 F.3d 931 (Fed. Cir. 1995)... 6 Gonzales v. Duran, 590 F.3d 855 (10th Cir. 2009)... 7 ii

7 i4i Ltd. P ship v. Microsoft Corp., 670 F. Supp. 2d 568 (E.D. Tex. 2009)... 8 In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007)... 1, 2, 3, 4 Int l Korwin Corp. v. Kowalczyk, 855 F.2d 375 (7th Cir. 1988)... 4 Mayo Collaborative Services v. Prometheus Laboratories, Inc., No , slip op. (Mar. 20, 2012)... 8 Messerschmidt v. Millender, 132 S. Ct (2012)... 6 Microsoft v. i4i Ltd. P ship, 131 S. Ct (2011)... 3 Old Reliable Wholesale, Inc. v. Cornell Corp., 635 F.3d 539 (Fed. Cir. 2011)... 5 Pearson v. Callahan, 555 U.S. 223 (2009)... 6 Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007)... 7 Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221 (Fed. Cir. 2011)...2, 4 Prof l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993)... 5 Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295 (Fed. Cir. 2004)... 6 Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703 (9th Cir. 2010)... 7 Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007)... 7 iii

8 Saucier v. Katz, 533 U.S. 194 (2001)... 7 Scott v. Harris, 550 U.S. 372 (2007)... 6 Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305 (Fed. Cir. 2010)... 3 Stryker Corp. v. Intermedics Orthopedics, Inc., 96 F.3d 1409 (Fed. Cir. 1996)... 3 Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296 (Fed. Cir. 2010)...10 Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)... 3 United States v. Freitas, 856 F.2d 1425 (9th Cir. 1988)... 7 United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997)... 7 United States v. Nerber, 222 F.3d 597 (9th Cir. 2000)... 7 United States v. Welliver, 976 F.2d 1148 (8th Cir. 1992)... 7 Rule Fed. R. App. P. 29(c)(5)... 1 Other Authorities Christopher B. Seaman, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417 (2012)... 9 FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (2003)... 9 iv

9 Kimberly A. Moore, Empirical Statistics on Willful Patent Infringement, 14 Fed. Cir. Bar J. 227 (2004)... 9 Nat l Research Counsel Comm. on Intellectual Prop. Rights in the Knowledge-Based Economy, A Patent System for the 21st Century (2004)... 8 Randy R. Micheletti, Willful Patent Infringement After In re Seagate: Just What Is Objectively Reckless Infringement?, 84 Chi. Kent L. Rev. 975 (2010)... 9 v

10 INTEREST OF AMICI CURIAE 1 Amici are leading providers of high-technology products and services, whose businesses depend on systems that incorporate a large number of components and perform a variety of functions. In that capacity, amici must frequently defend against baseless allegations of patent infringement, and like all others accused of infringement allegations that enhanced damages and attorney s fees are warranted because the alleged infringement was willful. Amici also conduct extensive research and own many patents. Amici therefore have a strong interest in a system of patent remedies that discourages infringement and protects legitimate property rights while avoiding the harmful effects on innovation of over-deterrence. ARGUMENT In Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No , slip op. 1, 32 (Fed. Cir. Feb. 10, 2012), this Court affirmed a district court s denial of Gore s JMOL motion on the issue of willfulness. Invoking a case decided nearly a decade before this Court s leading willfulness precedent, In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007), Bard stated that [d]etermining whether or not infringement is willful is a question of fact that must be established by clear and convincing evidence and is reviewed for substantial evidence. Slip op. at 32 1 This brief is filed pursuant to this Court s Rule 35(g). A party s counsel did not author this brief in whole or in part; no party other than amici contributed any money to fund preparing or submitting this brief. See Fed. R. App. P. 29(c)(5). 1

11 (citing Comark Commc ns v. Harris, 156 F.3d 1182, 1190 (Fed. Cir. 1998)). That is at best a vast oversimplification of Seagate s willfulness inquiry, which always requires consideration of a question of law: viz., whether the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. 497 F.3d at 1371 (emphasis added). Viewing Seagate s objective component as a question of law is consistent with this Court s precedents, doctrines from other contexts requiring objective inquiry, and sound policy concerns. This Court should grant review before Bard s mischaracterization of willfulness takes hold and obscures the important legal component of the Seagate inquiry. A. Seagate did not flesh out the contours of the objective and subjective components of the test it announced, leaving it to future cases to further develop the application of th[e] standard. 497 F.3d at In elaborating Seagate s objective prong, this Court has repeatedly recognized the law-based nature of the inquiry. For example, in Powell v. Home Depot, 663 F.3d 1221, 1236 (Fed. Cir. 2011), this Court concluded that [u]nder the objective prong, the answer to whether an accused infringer s reliance on a particular issue or defense is reasonable is a question for the court when the resolution of that particular issue or defense is a matter of law. See id. at 1237 n.1 (The objective and subjective willfulness questions should be sent to the jury only when the patentee proves by clear and convincing evidence that the objective prong of Seagate is met as to the legal issues that have been decided by the 2

12 court. ); Uniloc USA v. Microsoft, 632 F.3d 1292, 1310 (Fed. Cir. 2011) ( If the accused infringer s position is susceptible to a reasonable conclusion of no infringement, the first prong of Seagate cannot be met. ); DePuy Spine v. Medtronic Sofamor Danek, 567 F.3d 1314, (Fed. Cir. 2009) ( we hold that DePuy failed as a matter of law to satisfy Seagate s first prong ). 2 To be sure, this Court has from time to time made the same mistake that it made in Bard and described willfulness simply as a question of fact. In Cohesive Tech. v. Waters Corp., 543 F.3d 1351, 1374 (Fed. Cir. 2008) again invoking pre- Seagate precedent this Court stated that a court s finding [on] willful infringement is one of fact. (quoting Stryker Corp. v. Intermedics Orthopedics, 96 F.3d 1409, 1413 (Fed. Cir. 1996)); see also Spine Solutions, Inc. v. Medtronic Sofamor Danek, 620 F.3d 1305, 1319 (Fed. Cir. 2010) ( Willfulness is a question of fact. ). And in Powell, this Court stated that where separate issues of fact and law are presented by an alleged infringer as defenses to willful infringement, the objective recklessness inquiry may require analysis by both the court and the jury. 2 That Seagate speaks of meeting the objectively high likelihood standard by clear and convincing evidence does not mean that the objective component of willfulness is a question of fact. 497 F.3d at There may be facts that need to be established to prove willfulness. And those facts must be established by clear and convincing evidence. That does not mean, however, that whether the infringer acted despite an objectively high likelihood that its actions constituted infringement is not a question of law. Cf. Microsoft v. i4i, 131 S. Ct. 2238, (2011) (Breyer, J., concurring). 3

13 663 F.3d at These statements do not, however, undermine the conclusion that Seagate s objective inquiry will always require consideration of the threshold legal question whether the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. 497 F.3d at These cases merely note the unremarkable fact that deciding willfulness claims in general and particularly the subjective component may require factual analysis. 3 Viewing cases like Cohesive Tech. and Spine Solutions as turning Seagate into a purely factual analysis is unwise for several reasons. First and foremost, it conflates Seagate s objective and subjective components. Treating both aspects of the willfulness test as simply factual effectively collapses the two inquiries into one, meaning that all Seagate did was create two redundant factual enterprises. That cannot be right. Even if there is a dispute over the facts, there is a legal question that must be answered by the Court, such that simply labeling the whole endeavor a question of fact is misleading. Second, viewing Seagate s objective component as a pure question of fact is clearly inconsistent with the willfulness precedents of this Court just discussed, and as the following discussion demonstrates at odds with 3 To be sure, courts have treated willfulness as a question of fact in other contexts, such as in the copyright context. See Int l Korwin Corp. v. Kowalczyk, 855 F.2d 375, 380 (7th Cir. 1988). But those contexts do not feature the same sort of bifurcated objective/subjective analysis compelled by Seagate. As explained above, simply labeling the willfulness inquiry in the patent context a question of fact largely defeats Seagate s separation of the objective and subjective components of the inquiry. 4

14 the application of objective standards in other contexts. Finally, to the extent that cases like Cohesive Tech. and Depuy are in tension, that only underscores the need for en banc review to clarify the application of Seagate s objective prong. B. That the objective portion of the Seagate willfulness test should always require consideration of a question of law is confirmed by a brief review of three other doctrinal areas the Noerr-Pennington doctrine, qualified immunity, and expectations of privacy under the Fourth Amendment that turn, at least in part, on an objective, legal assessment of the relevant activity. For instance, under the Noerr-Pennington doctrine, a party is generally immunized from antitrust liability based on its filing of a lawsuit unless the narrow sham litigation exception applies. See Prof l Real Estate Investors v. Columbia Pictures ( PRE ), 508 U.S. 49, 56 (1993). In PRE, the Supreme Court explained that sham litigation is present where the lawsuit is objectively baseless and subjectively motivated by a desire to impose anticompetitive harm through the judicial process rather than obtain judicial relief. Id. at On more than one occasion, this Court has equated the Noerr-Pennington objectively baseless test and Seagate s objective recklessness standard. Indeed, it has called those two tests identical. See, e.g., ilor v. Google, 631 F.3d 1372, (Fed. Cir. 2011). This Court has treated this objective component of the Noerr-Pennington inquiry as a matter of law. See Q-Pharma v. Andrew Jergens Co., 360 F.3d 1295, 1305 (Fed. Cir. 2004); FilmTec 5

15 v. Hydranautics, 67 F.3d 931, (Fed. Cir. 1995). 4 This Court should afford Seagate s objective prong the same treatment. The law of qualified immunity also supports treating the objective component of the inquiry as a matter of law. Under the doctrine of qualified immunity, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court recently reaffirmed that the reasonable person portion of the qualified immunity inquiry is based on objective reasonableness, see Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012), and the Court has in the past suggested that the objective reasonableness inquiry is a question of law. See Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). The courts of appeals recognize that qualified immunity s objectively reasonable inquiry requires consideration of a question of law and is not simply a question of fact for the jury. 5 4 This Court s treatment of the issue has not been entirely uniform, see, e.g., Dominant Semiconductors Sdn. Bhd. v. OSRAM Gmbh, 524 F.3d 1254, (Fed. Cir. 2008), but that only underscores the case for en banc review. 5 Cloaninger v. McDevitt, 555 F.3d 324, 333 (4th Cir. 2009); Colston v. Barnhart, 146 F.3d 282, 285 n.2 (5th Cir. 1998); ; Rodriguez v. Maricopa Cnty., 605 F.3d 703, 707 (9th Cir. 2010); Gonzales v. Duran, 590 F.3d 855, 864 (10th Cir. 2009); Pitt v. District of Columbia, 491 F.3d 494, (D.C. Cir. 2007). The D.C. Circuit s formulation of the standard is representative: whether an objectively reasonable officer would have believed his conduct to be lawful, in light of clearly established 6

16 Similarly, whether an individual has a reasonable expectation of privacy for Fourth Amendment purposes is decided under an objective-subjective test not unlike Seagate s willfulness inquiry. And the objective component of that test is also regularly treated as a question of law. See United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000) ( Whether a citizen s expectation of privacy was objectively reasonable is a question of law reviewed de novo. ); United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997) ( [A] determination of whether the defendant retained an objectively reasonable expectation of privacy is a question of law that we review de novo. ); United States v. Welliver, 976 F.2d 1148, 1151 (8th Cir. 1992) (Whether a subjective expectation of privacy is objectively reasonable is a question of law. ). Seagate s objective prong should be viewed as including a question of law just like the objective inquiries conducted in other areas of the law. Cf. Ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) ( These familiar principles apply with equal force to disputes arising under the Patent Act. ). law[,] is a question of law that must be resolved by the court, not the jury. Pitt, 491 F.3d at In some instances courts have viewed the objectively reasonable inquiry as a mixed question of law and fact, but nonetheless they recognize that it is not a simple question of fact. See, e.g., United States v. Freitas, 856 F.2d 1425, 1428 (9th Cir. 1988). Furthermore, it is worth noting that Safeco Insurance Co. of America v. Burr, 551 U.S. 47, 70 (2007) the primary Supreme Court opinion relied on in Seagate refers to qualified immunity law and assessing whether an action was reasonable when applying its objectively unreasonable standard in the FCRA context. (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). 7

17 C. What is more, strong policy considerations counsel in favor of treating Seagate s objective inquiry as a question of law. First, doing so aids in achieving patent law s aims. The federal patent system embodies a carefully crafted bargain for encouraging the creation and disclosure of new, useful, and nonobvious advances in technology and design in return for the exclusive right to practice the invention for a period of years. Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, (1989). As a unanimous Supreme Court recently reaffirmed in Mayo v. Prometheus Labs, No , slip op. at 17 (Mar. 20, 2012), that bargain should not be enforced in a way that unnecessarily inhibit[s] future innovation. A doctrine that makes it easy to find willfulness and virtually always sends the issue with its attendant financial risks 6 to the jury can harm the competitive dynamic the Patent Act seeks to create and threaten future inventive efforts by burdening independent innovation by the alleged willful infringer. See Nat l Research Counsel Comm. on Intellectual Prop. Rights, A Patent System for the 21st Century 119 (2004); FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy ch. 5, 30 (2003). Among other things, it risks impeding innovation by chilling inventors freedom to learn from each other, for fear that the 6 The magnitude of the financial impact of the willfulness finding in Gore s case is startling more than $185 million in additional damages and $19 million in attorney s fees. This case is not unique. See, e.g., i4i v. Microsoft, 670 F. Supp. 2d 568, 596 (E.D. Tex. 2009) (awarding $40 million in damages for willfulness), aff d, 598 F.3d 831 (Fed. Cir. 2010), aff d on other grounds, 131 S. Ct (2011). 8

18 act of reading patents will be improperly deemed evidence of willfulness. Second, treating Seagate s objective component as a question of law will pay significant dividends in terms of judicial economy. Willfulness is the classic easy to allege, but difficult to prove allegation that needs to be policed early in the litigation. And it often may be easier to levy a charge of willfulness when the alleged infringer is itself a technology developer. Given the potential benefits of succeeding on a willfulness claim, and the low costs of lodging a willfulness allegation, it should come as no surprise that such allegations are standard fare in modern-day patent litigation. See Randy R. Micheletti, Willful Patent Infringement After In re Seagate: Just What Is Objectively Reckless Infringement?, 84 Chi. Kent L. Rev. 975, 975 (2010); Kimberly A. Moore, Empirical Statistics on Willful Patent Infringement, 14 Fed. Cir. Bar J. 227, 232 (2004). Seagate has not reduced the frequency with which willfulness is alleged. See Christopher B. Seaman, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417, (2012). Nor has it resulted in a significant reduction in how often willfulness is found. Id. at 441. And although Seagate has modestly increased the willingness of district courts to dispose of the issue in pretrial motions, id. at , Bard s overly-broad suggestion that willfulness is an issue of fact threatens to undo even that modest progress. Indeed, Bard may make it difficult for district courts to withhold willfulness claims from a 9

19 jury, even claims that this Court has held would preclude a finding of willfulness as a matter of law. 7 Third, the point of having an objective component to the Seagate test is to provide the rigor and uniform treatment that comes with viewing the issue as one of law. The jury will get to make the determination when it comes to subjective recklessness, but making the objective prong a question of law for the judge ensures that defendants are not found to have acted willfully based on the peculiarities of a single jury. And eliminating such idiosyncrasies is in furtherance of this Court s long-recognized duty to achieve uniformity in patent law. Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 857 (Fed. Cir. 1999). CONCLUSION For the foregoing reasons, this Court should grant rehearing and make clear that Seagate s objective component requires consideration of a question of law. 7 For example, in Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, (Fed. Cir. 2010), this Court affirmed a grant of summary judgment on willfulness because Maersk USA modified its design to conform to the GSF injunction and thus it could not be objectively reckless as a matter of law. If willfulness really were a simple question of fact, as Bard misleadingly suggests, even that question should have gone to the jury. That would make no sense and would prevent this Court from developing the law to provide guidance concerning willfulness generally and the circumstances in which conduct is objectively reckless as a matter of law. 10

20 Respectfully submitted, John Thorne Gail F. Levine Verizon Communications Inc North Court House Rd. Arlington, VA (703) Counsel for Amicus Curiae Verizon Communications Inc. Tina M. Chappell Intel Corporation M/S: OC South Dobson Road (480) Counsel for Amicus Curiae Intel Corp. March 26, 2012 /s/paul D. Clement Paul D. Clement D. Zachary Hudson Bancroft PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) Counsel for Amici Curiae Verizon Communications Inc. and Intel Corp. /s/michelle K. Lee Michelle K. Lee Suzanne Michel Google Inc Amphitheatre Parkway Mountain View, CA (650) Counsel for Amicus Curiae Google Inc. 11