The Problem of Willfulness in Patent Infringement Litigation

69 Pages Posted: 14 Jun 2010

See all articles by Neal Solomon

Neal Solomon

affiliation not provided to SSRN

Date Written: June 11, 2010

Abstract

The Federal Circuit decision in Seagate represented a sea change in patent law on the issue of willfulness. In the generation of case law from Underwater Devices to Seagate, the Court held that alleged patent infringers had a duty of care to obtain an opinion of counsel as a rebuttal to the belief that an infringed patent was invalid and not infringed. The Seagate Court overruled the need for a duty of care and instituted an “objectively reckless” standard for willful infringement that represented a high bar for proof.

The Seagate Court erred in several ways in changing the willfulness standards. Further, the Court failed to provide a meaningful interpretation of recklessness. The consequences of these errors are to severely constrain the willfulness standard and its deterrence effect to balance patentee rights.

Suggested Citation

Solomon, Neal, The Problem of Willfulness in Patent Infringement Litigation (June 11, 2010). Available at SSRN: https://ssrn.com/abstract=1623979 or http://dx.doi.org/10.2139/ssrn.1623979

Neal Solomon (Contact Author)

affiliation not provided to SSRN