We report on two Supreme Court decisions emphasizing the district courts’ discretion in awarding enhanced damages in patent cases and attorney fees in copyright cases; a Supreme Court decision upholding the Patent and Trademark Office’s standard of review in inter partes review proceedings; and a Second Circuit decision discussing nominative trademark fair use.
Patent: Enhanced Damages
The Patent Act provides that “the court may increase the damages up to three times the amount found or assessed,” 35 U.S.C. §284, a provision that has long been held to require a finding that the infringer acted willfully. In 2007, the U.S. Court of Appeals for the Federal Circuit set forth a two-part test for determining willfulness, requiring a patentee to show by clear and convincing evidence that: (1) “the infringer acted despite an objectively high likelihood that its actions constituted infringement,” and (2) that “this objectively-defined risk…was either known or so obvious that it should have been known to the accused infringer.” In re Seagate Technology, 497 F.3d 1360, 1371 (Fed. Cir. 2007).
