Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study

Abstract:     
Willful patent infringement is a critical issue in patent litigation, as it can result in an award of up to treble (enhanced) damages. In a 2007 decision, In re Seagate, 497 F.3d 1360 (en banc), the Federal Circuit significantly altered the standard governing willful infringement by requiring the patentee to prove at least "objective recklessness" by the accused infringer. Many observers predicted that this heightened standard would result in far fewer willfulness findings and enhanced damage awards. To date, however, there has been no comprehensive empirical study of Seagate's actual impact in patent litigation.

This paper fills that gap by analyzing six years of decisions in the district courts - three years before and after Seagate - on willful patent infringement and enhanced damages. Surprisingly, it determines that willful infringement was found only about 10% fewer cases after Seagate. In addition, after Seagate, juries find willful infringement substantially more often than judges at trial. However, enhanced damages are awarded less frequently and in lower amounts when juries find willfulness compared to judges.

Finally, this Article evaluates the impact of several common factors on willful infringement decisions after Seagate. Based on the empirical data collected in this study, the existence of a "substantial" or "legitimate" defense to infringement is the strongest predictor of a finding of no willfulness after Seagate, while evidence of copying by the accused infringer was the strongest predictor of willfulness. In contrast, the remaining factors studied - opinions of counsel, attempts to design around the patent, reexamination at the PTO, and bifurcation of willfulness from liability at trial - had no statistically significant effect on willfulness decisions.

Number of Pages in PDF File: 55

Keywords: willful, willfulness, patent, infringement, seagate, enhanced damages, read, opinion, opinion of counsel, copying, design around, reexamination, substantial defense, bifurcation, jury, judge, empirical

JEL Classification: K41, O31, O35

Accepted Paper Series