From Around the Blogs, Part 2

1.  On Law360, Charlotte Jacobsen, Filko Prugo, and Ryan Sullivan published an article titled Does Willful Blindness Beget Enhanced Patent Damages?  The article notes that, under the Federal Circuit's January 2020 decision in Eko Brands LLC v. Adrian Rivera Maynez Enterprises Inc., the trier of fact determines whether the infringement was "willful," a concept that "requires a jury to find no more than deliberate or intentional infringement."  Citing that case, the authors then state that if the jury finds the infringement to have been willful, then "the court must consider whether the infringer's conduct was egregious and worthy of punishment."  The question the authors address is whether "willful blindness" can substitute for knowledge of the patent.  They review the district court cases that have discussed this topic, and which have concluded that an allegation of willful blindness is sufficient to get past a motion to dismiss a request for enhanced damages.  As the authors note, however, the courts so far have not addressed whether willful blindness is enough to demonstrate egregiousness.  The authors conclude with a couple of best practices for patent litigators who have to grapple with these issues.

I may seek permission to include this article in the next revision of my patent damages casebook; it's quite informative. 

For previous discussion of the willful blindness issue on this blog, see here and here. 

2.  IPWatchdog published an interesting pair of articles taking opposite positions on whether eBay should be overruled.  Arguing in favor was IPWatchdog founder Gene Quinn (see here); arguing against, Evan Langdon (see here).    

3.  On the Kluwer Patent Blog, Anders Valentin published a post titled The Danish Maritime and Commercial High Court dismisses claim regarding preliminary injunction with extraterritorial effect.  As the author states, "the decision shows that there are strict criteria [that] must be met in order to obtain a preliminary injunction with extraterritorial effect."  For previous discussion of cross-border preliminary injunctions within the E.U., see, e.g., here; see also my comparative patent remedies book at p.253