Wednesday, January 27, 2016

More Amicus Briefs in Halo and Stryker

The Scotus Blog now has links to eight of the nine amicus briefs filed in the Halo/Stryker cases on January 20.  All eight of these briefs are in support of the respondents.  (In case you're joining this discussion late, Halo and Stryker are companion cases in which the U.S. Supreme Court is being asked to articulate the correct standard for awarding enhanced damages for patent infringement under 35 U.S.C. section 284.  For my previous blog posts on the case, and links to the merits and amicus briefs filed in December, see here, here, herehere, here, here, and here.)

Aside from the brief filed by Yahoo and Arthrex (which I had access to and mentioned last week here), and the one that isn't available yet online (filed by EMC Corporation), the newly filed amicus briefs are:
Brief amicus curiae of BSA I The Software Alliance as amici curiae in support of respondents. 

From a quick look, it appears that for the most part these briefs argue that willfulness is the correct standard for enhanced damages, and that the Supreme Court should retain Seagate.  The brief filed by the members of Congress argues that "In passing the AIA, Congress Understood the Seagate Standard Would Continue to Govern the Assessment of Enhanced Damages Under 35 U.S.C. § 284," that "The Legislative History of Congress’s Patent-Law Reform Efforts Confirms that Congress Was Well Aware of Seagate," and that "Congress Did Not Amend Section 284’s Enhancement Provision in the AIA Knowing that Seagate Would Remain in Place."  The signers are United States Senators Patrick Leahy (D-VT), Orrin Hatch (R-UT), and Michael Bennett (D-CO), and United States Representatives Lamar S. Smith (R-TX), Robert W. Goodlatte (R-VA), and Steven J. Chabot (R-OH).  The brief filed by Marvell references the litigation filed by Carnegie Mellon against Marvell (see previous discussion on this blog, here) to argue that "an objective test—reviewed de novo by the Federal Circuit—is necessary to ensure that patent holders do not receive windfalls at the expense of the public interest."  The brief filed by Intel et al. would modify Seagate slightly, to the extent of permitting an inference of willfulness based on "subjective proof that an accused infringer deliberately copied a patented product and affirmatively believed that it was infringing the patent," even if it turned out later that it had a "viable defense."  Some of them also address the standard of review issue.

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