• “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 (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 Cir. 02/05/18) (non-precedential) (aff’g denial of JMOL challenging jury’s willfulness verdict that had been based on Seagate instruction).
  • 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: 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). But see SRI Int’l (Fed. Cir. 03/20/19) (rev’g denial of JMOL of no willfulness for period before defendant had knowledge of patent or patent application).
  • 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).