1. Jeremy Taylor, Sarah Guske, and Wayne Stacy recently published an article on Law360 titled The New Reality of Patent Trials Post-Halo. According to the authors, in the wake of the Supreme Court's 2016 Halo decision "juries now find infringement much more often when willfulness is tried to the jury," and there is "a strong correlation between the two causes of action . . . . juries seem to run the two findings together." Further, while "juries found infringement in roughly half of all trials" pre-Halo, post-Halo "infringement findings jumped to 77 percent when willful infringement and infringement were tried together." In addition, post-Halo "juries found willful infringement 74 percent of the time overall, and almost 90 percent of the time when the same jury found all asserted claims infringed." The correlation disappears, however, "when infringement and willfulness are decided separately . . . or when a jury finds only some claims infringed . . . ." The authors don't state how many cases their analysis is based on or whether their findings are statistically significant, but if they hold out this seems pretty disturbing to me (though perhaps not surprising).
The authors also state that courts across the country have begun using the jury instructions developed in Polara Engineering, Inc. v. Campbell Co., Case No. 8:13:cv:00007 (C.D. Cal. June 29, 2016). Here is a link to those instructions, number 56 of which address wilfulness, and here is the text of a version of them that is now included in the Federal Circuit Bar Association's Model Patent Jury Instruction B.3.10:
In this case, [patent holder] argues both that [alleged infringer] infringed and, further, that [alleged infringer] infringed willfully. If you have decided that [alleged infringer] has infringed, you must go on and address the additional issue of whether or not this infringement was willful. Willfulness requires you to determine whether [patent holder] proved that it is more likely than not that the infringement by [alleged infringer] was especially worthy of punishment. You may not determine that the infringement was willful just because [alleged infringer] knew of the [ ] patent and infringed it. Instead, willful infringement is reserved for only the most egregious behavior, such as where the infringement is malicious, deliberate, consciously wrongful, or done in bad faith.
To determine whether [alleged infringer] acted willfully, consider all facts. These may include, but are not limited, to:
(1) Whether or not [alleged infringer] acted consistently with the standards of behavior for its industry;
(2) Whether or not [alleged infringer] intentionally copied a product of [patent holder] that is covered by the [ ] patent;
(3) Whether or not [alleged infringer] reasonably believed it did not infringe or that the patent was invalid;
(4) Whether or not [alleged infringer] made a good-faith effort to avoid infringing the [ ] patent, for example, whether [alleged infringer] attempted to design around the [ ] patent; and (5) Whether or not [alleged infringer] tried to cover up its infringement.
[Give this instruction only if [alleged infringer] relies upon an opinion of counsel as a defense to an allegation of willful infringement:
[Alleged infringer] argues it did not act willfully because it relied on a legal opinion that advised [alleged infringer] either (1) that the [product] [method] did not infringe the [ ] patent or (2) that the [ ] patent was invalid [or unenforceable]. You must evaluate whether the opinion was of a quality that reliance on its conclusions was reasonable.]
2. The blogs have also noted some recent significant cases on willfulness and/or enhanced damages, including the $130 million enhancement awarded in Alfred E. Mann Fdn. v. Cochlear Corp. (write-ups available on IP Watchdog and Law360); the trial judge's reaffirmation that Briggs & Stratton willfully infringed Exmark's patent in Exmark Mfg. Co. v. Briggs & Stratton Corp. following a remand from the Federal Circuit (write-up on Law360); a recent award of double damages (amounting to just under $12 million) in Fitness Anywhere LLC v. WOSS Enterprises (write-up on IP Watchdog); a recent finding of wilfulness in Bio-Rad Labs., Inc. v. 10X Genomics, Inc., which could lead to an enhancement of an actual damages award in the amount of $24 million (write-up on IP Watchdog); and the Federal Circuit's affirmance without opinion in Stryker v. Zimmer (write-up on Patently-O).