Bosch case: CAFC may entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred.
Given the nature of the arguments made by the parties and the amici, we take a moment to explain what this case is not about. This case does not involve the question of whether the district court has the authority to bifurcate the willfulness and infringement issues. As a general matter, it does. See Fed. R. Civ. P. 42(b). Likewise, we did not take this case en banc to determine whether the issues of infringement and willfulness are so interwoven that trying them separately violates the Seventh Amendment. Precedent of this court, nonetheless, indicates that it does not. See Voda v. Cordis Corp., 536 F.3d 1311, 1329 (Fed. Cir. 2008). Rather, we took this case en banc to determine whether we have jurisdiction when willfulness issues are outstanding and remain undecided. Bifurcation and Seventh Amendment issues are immaterial to this inquiry. Our jurisdiction is set by Congress and Congress has given us jurisdiction over patent cases that are final except for an accounting. Accordingly, the disposition of this issue turns on whether an “accounting” as described in § 1292(c)(2) includes the determination of willfulness.
As always, we begin with the statute. “[W]here words are employed in a statute which had at the time a well- known meaning at common law or in the law of this country, they are presumed to have been used in that sense.” Standard Oil Co. of N.J., 221 U.S. at 59. Our inquiry begins and ends with a determination of the historical meaning of an “accounting.” Specifically, we must determine whether at the time the statute was passed, an accounting included the determination of willfulness. (...)
Bosch is unable to point to anything in the text of the statute or in the legislative history that would indicate that when Congress first gave the courts of appeals inter- locutory jurisdiction over cases that are final except for an accounting, it intended to disturb the practice of deter- mining willfulness as part of an accounting. Indeed, after the enactment of §1292(c)(2)’s predecessor statute in 1927, courts continued to determine willfulness as part of an accounting, which occurred after the finding of liabil- ity. For example, in Pyle National Co. v. Lewin, the district court held the patents valid and infringed, and awarded treble damages prior to conducting an account- ing. 92 F.2d 628, 629, 631 (7th Cir. 1937). An appeal was then taken to the Seventh Circuit prior to the accounting.
For the reasons outlined above, this court answers each en banc question in the affirmative. We find that 28 U.S.C. § 1292(c)(2) does confer jurisdiction on this court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred. We also find that 28 U.S.C. § 1292(c)(2) confers
jurisdiction on this court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided. Accordingly, we return this case to the panel for disposition on the merits.