Increased Damages; Non-Willfulness

  • BASICS: “The court may increase the damages up to three times the amount found or assessed.” 35 U. S. C. § 284. Increased damages awards “should generally be reserved for cases of egregious misconduct” but need not follow from a finding of egregious willful misconduct, and are governed by preponderance of the evidence standard, and abuse-of-discretion review. Halo (U.S. 06/13/2016) (rejecting Seagate two-part test for awarding increased damages, “clear and convincing evidence” burden of proof, and tripartite standard of review). “Awards of enhanced damages … are not to be meted out in a typical infringement case, but are instead de­signed as a “punitive” or “vindictive” sanction for egre­gious infringement behavior. The sort of conduct warrant­ing enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Id. “Subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Id. Objective recklessness is not required in every case as that would shield one “who intentionally in­fringes another’s patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee’s business.” Id. “Enhanced damages are generally only appropriate in egregious cases of misconduct, such as willful, wanton, or malicious behavior.” Arctic Cat (Fed. Cir. 12/07/17) (aff’g jury verdict of willfulness where infringer “knew about the patents before they issued, conducted only a cursory analysis of the patents, waited years before seeking advice of qualified and competent counsel, and unsuccessfully tried to buy the asserted patents through a third party.”); Presidio (Fed. Cir. 11/21/17) (aff’g denial of enhanced damages despite jury verdict of willful infringement).