On June 14, 2013, the US Court of Appeals for the Federal Circuit, sitting en banc, issued an opinion in Robert Bosch, LLC v. Pylon Manufacturing Corp. The court held that 28 U.S.C. § 1292(c)(2) gave it jurisdiction to hear interlocutory appeals in patent infringement cases even when:

Robert Bosch, LLC sued Pylon Manufacturing Corp. for patent infringement in the US District Court for the District of Delaware. The district court granted Pylon's motion to bifurcate the issues of infringement liability and damages and stayed discovery on damages, including the related issue of willfulness. After trial on the issue of infringement liability but before the damages issues was litigated, Bosch appealed to the Federal Circuit and Pylon cross-appealed. After the panel heard the parties' appeals, the Federal Circuit granted rehearing en banc to consider whether it had jurisdiction to hear interlocutory appeals before damages issues, including willfulness, were heard in the district court.

The Federal Circuit first noted that although the final judgment rule usually requires a single appeal from a final judgment, 28 U.S.C. § 1292(c)(2) contains an exception, allowing the Federal Circuit to hear interlocutory appeals from patent infringement cases that are final except for an accounting. The pivotal questions, therefore, were whether a damages trial was an "accounting" within the meaning of the statutory exception and whether willfulness had to be decided before the accounting.

The court first rejected Bosch's contention that the determination of a patentee's damages was not an accounting within the meaning of the statute. The majority found that although accounting in patent cases referred in the nineteenth century only to an accounting of an infringer's profits in a court of equity, later historical developments led to a broader understanding of accounting to include other damages proceedings. This includes a modern jury trial on damages, not just proceedings before a special master.

The court also noted that the rationale for Congress's exception allowing for interlocutory appeals was the high expense of accountings in patent infringement cases. The same policy concerns that motivated Congress to adopt the exception also helped guide the majority's decision.

On the issue of stare decisis, the majority stated that it has been the law of the Federal Circuit for at least 25 years that a Section 1292 accounting includes a trial for the determination of damages, and that no good reason was given in this case to depart from that precedent.

Turning to the question of willfulness, the court held that Section 1292(c)(2) conferred jurisdiction on the court to hear interlocutory appeals from patent infringement liability determinations when willfulness issues were outstanding and undecided because an accounting in Section 1292(c)(2) may include the determination of willfulness.

Historically, the court noted, accounting proceedings included willfulness determinations by a special master in equity. Finding no support in the text of the statute or the legislative history for the claim that Congress intended to disturb the practice of willfulness being part of the accounting analysis, the court held that the accounting in Section 1292(c)(2) includes the determination of willfulness.

Having concluded that there is jurisdiction over the interlocutory appeals from the liability determination, the en banc court returned the case to the original three-judge panel to decide the appeal on the merits.

Judges Moore and Reyna each concurred in part and dissented in part. Both judges concurred in the majority's holding that appellate jurisdiction existed over district court judgments that are final except for a determination of damages. Each judge dissented, however, from the majority's holding on the issue of willfulness. Each judge concluded that determining willfulness requires an inquiry that goes beyond the accounting of damages provided for in Section 1292(c)(2).

Judges O'Malley and Wallach dissented from all of the majority's holding, finding that the majority stretched Section 1292(c)(2) far beyond its proper scope and gave it "astounding breadth."

The Federal Circuit's en banc decision makes clear that the parties in a patent infringement action need not wait for a determination of damages or willfulness to appeal. Under 28 U.S.C. § 1292(c)(2), an interlocutory appeal is available once the district court determines liability.