I mentioned last week the filing of the petitioners' briefs in Halo and Stryker, the cases presenting to the U.S. Supreme Court the issue of the appropriate standard for awarding enhanced damages in patent cases. I'm aware of two amicus briefs that have been filed thus far, one by Public Knowledge, The Electronic Frontier Foundation, and Engine Advocacy in support of neither party (available here), and one by Intellectual Property Professors (also in support of neither party, and available here). I'll probably blog sometime soon with my thoughts on the petitioners' briefs and these two amicus briefs, but for now I'll just note the following passages from the amicus briefs' respective summaries of arguments, which provide a flavor of their very different perspectives on the issues. First, from the brief filed by Public Knowledge et al.:
Amici do not take a position on the correct interpretation of § 284, but do believe that any proper construction should limit enhanced damages in at least the following three ways: district court discretion should not be left unbounded, subjective bad faith should be required, and a reasonable belief in invalidity should avoid a finding of bad faith.
Second, from the brief filed by the IP Professors:
In lieu of the Federal Circuit’s inflexible approach, this Court should hold that district courts should determine willfulness—and thus eligibility for increased damages—by requiring the patentee to demonstrate that the infringer at least recklessly violated the patentee’s rights under a totality of the circumstances. In addition, because willfulness is a fact-intensive determination best suited for resolution by the trial court, this decision should be reviewed for abuse of discretion on appeal.
If anyone is willing to share with me any other amicus briefs that have been or will be filed in these cases, I would appreciate it!
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