Willfulness Trends of the Federal Circuit and Recommendations to Avoid Willful Infringement

摘要

The tort of willful infringement is punitive in nature and may result in enhanced damages. Willfulness has been found when the alleged infringer acts in "disregard of a patent" and lacks "a reasonable basis for believing it had a right to do what it did. Once an alleged infringer is given actual notice of infringement, the alleged infringer has "an affirmative duty of due care" to ensure that its product does not infringe. This duty of due care usually includes obtaining a competent legal opinion that the product does not infringe the patent claims, that the patent claims are invalid, or that the patent is unenforceable. By reasonably relying on such an opinion, the alleged infringer likely will maintain a good faith belief that its product does not infringe the claims of the asserted patent. To establish willful infringement, the patentee must prove by clear and convincing evidence that the alleged infringer acted without a reasonable basis. Willfulness is a question of fact that requires a finding of "culpable intent" and "deliberate or negligent wrongdoing." Willfulness will not be found if the alleged infringer, considering all of the circumstances, conducted itself in the same manner as a reasonable and prudent person. A court must consider the totality of the circumstances at the time notice was given to the alleged infringer. Therefore, any later-discovered defense that was unknown to the alleged infringer at the time notice was given is irrelevant to the willfulness inquiry.