Willful Infringement and EnhancedDamages. Where Are We ...

Willful Infringement and EnhancedDamages. Where Are We? Where AreWe Going? Are We There Yet?
Judge Cathy Bencivengo (S.D. Cal.)Judge Cathy Bissoon (W.D. Pa.)Judge Christopher Burke (D. Del.)Judge Robert W. Schroeder, III (E.D. Tex.)Judge John Love (E.D. Tex.)Jeannie Heffernan, Moderator
“[T]hecourt may increase the damages up to three timesthe amount found or assessed.”
35 U.S.C. § 284
Patentee proves willful infringement by clear and convincing evidence“Infringer acted despite an objectively high likelihood that its actions constituted infringement”If “objective standard is satisfied,” patentee must establish that “objectively-defined risk . . . was either known or so obvious that it should have been known to the accused infringer”Court exercises discretion to decide whether and by how much to enhanceIn re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (en banc)
Pre-HaloStandard
Patentee proves willfulinfringement bya preponderance of theevidence“As we explained in Octane Fitness, ‘patent-infringement litigation has always been governed by a preponderance of the evidence standard.’ Enhanced damages are no exception.”No “rigid formula.”Court exercises discretion to decide whether and by how much to enhanceHalo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923,1932, 1934(2016)
Post-HaloStandard
“The sort of conduct warranting enhanced damages has been variously described in our cases aswillful, wanton, malicious, bad faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.… Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount.”Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932-33 (2016)
Post-HaloStandard
Deliberate copyingInvestigated infringement and validityLitigation conductSize and financial conditionCloseness of caseDuration of infringementRemedial actionMotivation for harmAttempt to concealinfringement
ReadFactors
Enhancement Amounts