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); SRI Int’l II (Fed. Cir. 09/28/21) (reinstating trial court’s award of double damages it based on “Cisco’s litigation conduct, its status as the world’s largest networking company, its apparent disdain for SRI and its business model, and the fact that Cisco lost on all issues during summary judgment and trial, despite its formidable efforts to the contrary.”). 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 Cir. 02/05/18) (non-precedential) (vacating enhancement despite “evidence of a possible ‘culture of copying’ … that weighs in favor of enhancement”); WCM Indus. II (04/20/20) (non-precedential) (aff’g enhancement by 2.5 multiplier where court on remand provided “a more complete analysis of the Read factors and supported its analysis with record evidence”).
  • 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); see Hologic (Fed. Cir. 04/22/20) (aff’g denial of enhancement of post-verdict supplemental damages where there was no jury finding of willfulness nor district court finding of post-verdict willful infringement).
  • (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).

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