Complete Set of Briefs Filed Thus Far in Halo and Stryker Enhanced Damages Cases

Thanks to Professor Jason Rantanen, I now have what I believe is a complete set of all of the briefs filed thus far in Halo and Stryker, the pending U.S. Supreme Court decisions that will address the standard for awarding enhanced damages in patent infringement cases.  In addition to the briefs filed by the petitioners Halo and Stryker themselves, and the two amicus briefs I mentioned the other day (a brief filed by Public Knowledge, The Electronic Frontier Foundation, and Engine Advocacy in support of neither party, and a brief filed by Intellectual Property Professors (Professor Rantanen, Professor Chris Seaman, and Professor Tim Holbrook) in support of neither party), there are the following additional amicus briefs:

1.  Brief of the United States supporting petitioners.

2.  Brief of AIPLA in support of neither party.

3.  Brief of Askeladden LLC in support of neither party.

4.  Brief of Ericsson Inc. in support of neither party.

5.  Brief of Intellectual Property Owners Association in support of neither party.

6.  Brief of Innovention Toys, LLC in support of petitioners.

7.  Brief of Licensing Executives Society (U.S.A. and Canada) in support of no party.

8. Brief of Mentor Graphics Corp., Microsoft Corp., and SAP America, Inc. in support of neither party.

9. Brief of Professor Adam Mossoff in support of neither party.

10. Brief of Nokia Technologies Oy and Nokia USA Inc. in support of petitioners.

11. Brief of Small Inventors in support of petitioners.

I'll keep readers posted on other briefs as they come in.  It's going to take me a little while to work my way through all of these; so far I've only read the petitioners' briefs and the IP Professors' brief.  The petitioners argue that the current standard for awarding enhanced damages (requiring a showing, by  clear and convincing evidence, of "willfulness" consisting of both objective and subjective recklessness, with the objective prong labeled a question of law and subject to de novo review on appeal) is not consistent with the standard for awarding enhanced damages that prevailed up to the 1952 Patent Act; and that the latter is what Congress would have understood it was enacting into law.  Under that standard, they argue, a court could award enhanced damages, subject to a preponderance of the evidence standard and reviewable on appeal for abuse of discretion, under a "totality of the circumstances" approach in cases involving willful misconduct and certain other situations such as where the defendant has imposed an undue burden on the patent owner.  They also argue that such a standard is more consistent with the totality of the circumstances/discretionary review approach the Supreme Court adopted last year in the cases involving awards of attorneys' fees, Octane Fitness and Highmark.  The professors agree with much of this but argue that willfulness should be the one, single standard for awarding enhancements.

For what it's worth, my own view--as a matter of policy, not necessarily statutory interpretation--is that an ideal rule would be to award compensatory damages, including in the typical case the prevailing party's attorneys' fees, with damages enhancements available only in certain discrete circumstances such as when the normal rule (1) would leave the plaintiff worse off than it would have been but for the infringement (maybe because certain harms are not susceptible to quantification), or (2) would leave the defendant in a better position than a willing licensee (maybe because the infringer avoids certain risks that a licensee would shoulder), or (3) would be necessary achieve adequate deterrence (maybe because the infringing act was of a type that often would go undetected, or the defendant has deliberately driven up litigation costs to discourage an impecunious patentee from filing suit).

Update:  Yesterday (Sunday) Dennis Crouch published a post summarizing the positions taken in the various amicus briefs, here.