Increased Damages in Patent Suits: 3 Amici Curiae Support a Balanced Approach in Supreme Court

Published December 14, 2015

This term, the Supreme Court of the United States will decide when trial judges may award increased damages in patent suits and the role of “willfulness” of infringement in that determination. Today, December 14, 2015, a group of three Amici Curiae—Mentor Graphics Corp., Microsoft Corp., and SAP America, Inc.—filed a brief making the following points.

  1. Subjective willfulness is for the trial judge not the jury;
  2. Trial judges making this determination should consider the behavior of both parties, post- and pre-complaint, in light of the patent system’s core policies. E.g.:
    • companies should not be penalized for looking at others’ patents;
    • companies should not be penalized for filing patent applications against which a later-asserted patent is cited as prior art;
    • patent owners should not be penalized for licensing their patents; and
    • patent owners should not be rewarded for silently watching the infringement grow.

The brief was authored by Klarquist Sparkman LLP, Portland OR. (Salumeh Loesch, John D. Vandenberg).

Linked here is the Amicus brief.