Remedies for Patent Infringement: Enhanced Damages and Willful Patent Infringement

Abstract

The Federal Circuit's landmark 2007 decision in In re Seagate Tech., LLC, required that in order to prove willfulness a patentee must establish, inter alia, that the infringer acted in an objectively reckless manner. The Seagate standard significantly raised the bar on willfulness, making it more difficult for a patentee to establish than under the Federal Circuit’s previous standard. Whatever the actual impact of Seagate, the legal framework it established in 2007 may well be mooted or modified by the Supreme Court’s 2015 grant of certiorari in two more recent willfulness cases, Halo Elecs., Inc. v. Pulse Elecs., Inc., and Stryker Corp. v. Zimmer, Inc. Notably, the Federal Circuit appears to anticipate that the Supreme Court’s forthcoming decisions in Halo and Stryker may work a significant change in the law of enhancement; on November 17, 2015, the Circuit issued a rare order holding in abeyance, until the Supreme Court decides Halo and Stryker, a petition for rehearing en banc in Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd. This chapter excerpt analyzes these and other leading Federal Circuit and Supreme Court cases concerning enhancement of compensatory damages under 35 U.S.C. §284, considering primarily enhancement based on a finding of willful infringement.

Keywords: patent, infringement, willful infringement, willfulness, enhanced damages, enhancement, Seagate, Halo, Stryker, Carnegie Mellon

JEL Classification: K19, K29, K39, K41