A finding of “willfulness” in patent infringement litigation can have enormous consequences for both plaintiffs and defendants. Under 35 USC §284, the trial court has the discretion to enhance the actual damages found by the court or jury “up to three times the amount found” and under 35 USC §285 may award attorney fees in “exceptional cases.” The case law that has developed concerning these two statutes provides that a finding of willful infringement can render the case “exceptional” and thus opens the door to awards of up to treble damages and awards of full attorney fees, which in patent litigation can run into tens of millions of dollars.
In its 2007 en banc decision in In re Seagate Technology,1 the U.S. Court of Appeals for the Federal Circuit established a two-pronged test to establish the requisite recklessness for a finding of willful patent infringement, the first prong being objective and the second prong being subjective. Prior to Seagate, the standard for willfulness was more akin to negligence than recklessness.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
