• “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 Cir. 02/05/18) (non-precedential) (aff’g denial of JMOL challenging jury’s willfulness verdict that had been based on Seagate instruction).
  • Subjective Willfulness Governed By Preponderance Of The Evidence Standard: On subjective willfulness, “Halo replace[d] Seagate’s clear-and-convincing evidence standard with the “preponderance of the evidence standard.” WesternGeco II (Fed. Cir. 09/21/16).
  • Deliberate, Intentional Infringement, Or “Specific Intent” To Infringe, Enough; Need Not Show Behavior Wanton, Malicious Or Bad Faith: “‘Willfulness’ requires a jury to find no more than deliberate or intentional infringement.” The language “wanton, malicious, and bad-faith” in Halo, refers to “conduct warranting enhanced damages,” not conduct warranting a finding of willfulness.” SRI Int’l II (Fed. Cir. 09/28/21) (rev’g trial court refusal on remand to reinstate willfulness jury verdict and double damages award); Eko Brands (Fed. Cir. 01/13/20) (aff’g jury verdict of non-willfulness, despite some errors in jury instruction mentioning punishment and egregious behavior. “Under Halo, the concept of ‘willfulness’ requires a jury to find no more than deliberate or intentional infringement.”). “To establish willfulness, a patentee must show that the accused infringer had a specific intent to infringe at the time of the challenged conduct.” BASF (Fed. Cir. 03/15/22) (aff’g JMOL of no willfulness).
  • 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); 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.”). See Pavo Solutions (Fed. Cir. 06/03/22) (aff’g willfulness; “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement”). See Schutte (U.S. 06/01/2023) (under False Claims Act, whether party made false statement “knowingly” turns on party’s subjective belief, even if no hypothetical reasonable person would have thought the statement was false on account of a facial ambiguity in the statute. “The facial ambiguity of the phrase thus does not by itself preclude a finding of scienter under the FCA.”).
  • Not Showing Asserted Patent To Designers Or Attempting To Design Around May Support Willful Infringement: Ironburg (Fed. Cir. 04/03/23) (aff’g willful infringement jury verdict; evidence that in-house counsel received cease and desist letter but did not provide patent to company designers, and there was no evidence of design around, is substantial evidence in support).
  • Assertion Of Unreasonable Infringement Or Invalidity Defense Supports Finding Of Willfulness: Evidence that invalidity and non-infringement defenses were unreasonable supports jury finding of willfulness. SRI Int’l II (Fed. Cir. 09/28/21) (infringer’s expert asserted anticipation by a reference without having seen PTO Reexamination rejection of that anticipation assertion; non-infringement defenses based on one element not required by claim construction and another element that infringer’s own witness admitted was in its product).
  • Finding Of Inducement Infringement Supports But Does Not Compel Finding Willful Infringement: Standards for inducement and willful infringement are different and finding of “induced infringement does not compel a finding of willfulness,” but here “the jury’s unchallenged findings on induced infringement, when combined with Cisco’s lack of reasonable bases for its infringement and invalidity defenses, provide sufficient support for the jury’s finding of willful infringement.” SRI Int’l II (Fed. Cir. 09/28/21) (rev’g trial court refusal on remand to reinstate jury verdict of willfulness for post-patent knowledge period).
  • 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 I (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). See Fleet Engineers (Fed. Cir. 08/15/23) (non-precedential) (aff’g denial JMOL on jury verdict of no willfulness where evidence supported that defendant knew of patent application but not issued patent pre-Complaint).
  • 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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