• “Knew Or Should Have Known” Actions Had High Risk Of Infringement Supports Willful Infringement: “Subjective willfulness alone—i.e., proof that the defendant acted despite a risk of infringement that was “‘either known or so obvious that it should have been known to the accused infringer,’”—can support an award of enhanced damages.” Arctic Cat I (Fed. Cir. 12/07/17) (aff’g jury verdict of willfulness; approving jury instruction: “BRP actually knew or should have known that its actions constituted an unjustifiably high risk of infringement of a valid and enforceable patent.”); Polara (Fed. Cir. 07/10/18) (aff’g jury verdict of willful infringement; “jury reasonably could have found that Campbell intentionally copied the ’476 patent despite a significant known risk that its two-wire AAPS would infringe.) Post Halo, “‘subjective willfulness alone . . . can support an award of enhanced damages.’” WCM Indus. (Fed. Cir. 02/05/18) (non-precedential) (aff’g denial of JMOL challenging jury’s willfulness verdict that had been based on Seagate instruction).
  • Direct Infringement And Knowledge Of Patent Not Enough To Send Willfulness To Jury: “Knowledge of the asserted patent and evidence of infringement is necessary, but not sufficient, for a finding of willfulness. Rather, willfulness requires deliberate or intentional infringement.” Bayer (Fed. Cir. 03/01/21) (aff’g pre-verdict JMOL of no willfulness).
  • Assertion Of An “Objectively Reasonable” Defense To Infringement May Be A Factor, But Not Dispositive, Under Halo: See WBIP (Fed. Cir. 07/19/16) (“Proof of an objectively reasonable litigation-inspired defense to infringement is no longer a defense to willful infringement.”) Objective reasonableness is still, however, “one of the relevant factors” for court to consider when exercising its discretion. WesternGeco II (Fed. Cir. 09/21/16) (on remand from S. Ct.; vacating and remanding willfulness determination), rev’d on other grounds, WesternGeco III (U.S. 06/22/2018) (7-2). “[C]ulpability is generally measured against the knowledge of the actor at the time of the challenged conduct.” Halo (U.S. 06/13/2016), on remand Halo II (Fed. Cir. 08/05/16) (on remand, district court “in assessing the culpability … should consider, as one factor in its analysis, what [infringer] knew or had reason to know at the time of the infringement of the … patents”); on remand Stryker II (Fed. Cir. 09/12/16) (aff’g non-appealed jury finding of willfulness and remanding to district court to determine enhanced damages and attorney fees); see Exmark (Fed. Cir. 01/12/18) (vacating jury finding of willfulness; “under Halo, the district court no longer determines as a threshold matter whether the accused infringer’s defenses are objectively reasonable.” In deciding whether to allow evidence of prior art, trial court should “determine whether [the infringer] had developed any views about the prior art at the time of accused infringement or whether the evidence only relates to [the infringer’s] litigation-inspired defenses.”).
  • Pre-Suit Knowledge Of Patent May Not Be Required For Willful Infringement Post Complaint: Pre-Halo, knowledge of the patent was required for a finding of willful infringement. “To willfully infringe a patent, the patent must exist and one must have knowledge of it.” State Indus. (Fed. Cir. 01/03/85) (rev’g finding of willful infringement, where first notice of the patent was in the Complaint). And Fed. Cir. panels post-Halo still require knowledge of the patent for a finding of willfulness. WBIP (Fed. Cir. 07/19/16) (aff’g willfulness finding; “knowledge of the patent alleged to be willfully infringed continues to be a prerequisite to enhanced damages”); SRI Int’l (Fed. Cir. 03/20/19) (reversing denial of JMOL of no willfulness for period before defendant had knowledge of patent or patent application.). But, one non-precedential panel in dictum post-Halo said that there is no per se rule that a party cannot be liable for willful infringement unless it had knowledge of the patent pre-suit; and knowledge of a pending patent application may give knowledge of the patent because applications now are routinely published. WCM Indus. (Fed. Cir. 02/05/18) (non-precedential) (dictum; here evidence supported that infringer had knowledge at least one month before the lawsuit was filed).
  • Failure To Seek Preliminary Injunction Does Not Bar Willfulness Finding: “There is ‘no rigid rule’ that a patentee must seek a preliminary injunction in order to seek enhanced damages.” Mentor Graphics (Fed. Cir. 03/16/17) (vacating trial court exclusion of evidence of willfulness).
  • Whether Alleged Infringer’s Actions Were Pre-Suit Is Measured By The Patent Owner’s Pleading Asserting Infringement: Where infringer files DJ action followed by patent owner counterclaim for infringement, the latter determines whether the infringer’s actions were pre-suit. Mentor Graphics (Fed. Cir. 03/16/17) (vacating trial court exclusion of evidence of willfulness).

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