Enhancement of Damages

  • Read” Factors Court May Consider In Exercising Its Discretion To Enhance Damages: “(1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed; (3) the infringer’s behavior as a party to the litigation; … (4) Defendant’s size and financial condition; (5) Closeness of the case; (6) Duration of defendant’s misconduct; (7) Remedial action by the defendant; (8) Defendant’s motivation for harm; (9) Whether defendant attempted to conceal its misconduct.” Read (Fed. Cir. 07/10/92) (citations omitted). “After Halo and under Read, the ‘closeness of the case’ remains a relevant consideration for determining the appropriateness of enhancement.” Polara (Fed. Cir. 07/10/18) (remanding award of 2.5 times damages for explanation in view of closeness of public use defense). But, a “district court is not required to discuss the Read factors.” Presidio (Fed. Cir. 11/21/17) (aff’g denial to award enhanced damages). “When only a subset of [Read] factors weigh in favor of enhanced damages a court should award less than treble damages.” WCM Indus. (Fed. Cir. 02/05/18) (non-precedential) (vacating enhancement despite “evidence of a possible ‘culture of copying’ … that weighs in favor of enhancement.”)
  • Enhanced Damages For Post-Verdict Actions Without Pre-Verdict Willfulness: Even where willfulness not alleged in action, trial court may enhance its supplemental damages award for willful post-verdict infringement. SynQor (Fed. Cir. 03/13/13).
  • (pre-Halo) Failure To Obtain Clearance Opinion Still Factor In Enhancing Damages: “Seagate did not change the application of the Read factors with respect to enhancement of damages when willful infringement under §285 is found.” Spectralytics (Fed. Cir. 06/13/11); Georgetown Rail (Fed. Cir. 08/01/17) (aff’g award of enhanced damages based on trial court’s application of the Read factors).

284 Expansive: statutory language is expansive; damages are not limited to lost profits, established royalty and reasonable royalty. Mars (Fed. Cir. 06/02/08).