Willful infringement
Our opinions do not count at the end of the day. The law and precedent(s) is all that counts at the end of the day.
Willful infringement
Infringement or active inducement of infringement is willful when it is done deliberately and intentionally, and with knowledge of the patent. Copying of an invention, if such copying continues after the existence of the patent is made known, is evidence of willfulness. However, infringement or active inducement of infringement is not willful if it is done with a good faith belief that the patent is either invalid or not infringed. The burden is on the patent owner to show willfulness by clear and convincing evidence. Power Lift, Inc. v. Lang Tools, Inc., 227 U.S.P.Q. 435, 438 (Fed. Cir. 1985).
Willful Patent Infringement—Historical Background
The U.S. patent statute states that a "court may increase the damages up to three times the amount found or assessed."1 The patent statute states that the award should be "adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with the interest and costs as fixed by the Court."2 It was not until 1983 in the case of Underwater Devices Inc. v. Morrison-Knudsen Co., Inc. that the Federal Circuit set forth clear guidance for establishing willful infringement.3
The Underwater Devices case established an affirmative duty-of-care standard in connection with willful patent infringement. Specifically, Underwater Devices established that, once a party has been put on notice of allegedly infringing activities, the party must exercise due care in determining whether it is engaging in infringing activities.4 This included an affirmative duty "to seek and obtain a competent legal advice from counsel before the initiation of any possible infringing activity."5 As a result, clients were often advised by their counsel to obtain patent opinions prior to engaging in any potentially infringing activity, to shield against a charge of willful infringement. This standard reigned for over two decades but was recently overturned by the Federal Circuit in the case of In re Seagate Tech. LLC.6
