On Thursday, April 9, from 2-3 p.m. Eastern Time, the IP Chat Channel will be hosting a webinar titled Willful Blindness and Enhanced Damages: Litigation and Patent Search Policy. I will be one of the speakers, along with Charlotte Jacobsen and Jenifer Ward. Here is a link to register, and here is the description:
In its 2016 Halo v. Pulse decision, the U.S. Supreme Court relaxed the standard for finding willful infringement. Now patent owners are more likely than before to pursue a willful infringement claim and enhanced damages, yet experts say considerable uncertainty still exists as to when and how enhanced damages are to be awarded. Much of this uncertainty centers on whether the policy of forgoing patent search is equivalent to willful blindness and can lead to enhanced damages post-Halo. Testimony to the FTC and anecdotal reports indicate that, for some companies, the risks of enhanced liability from reading patents outweigh the teaching benefit those patents could otherwise provide.
Panelists include a senior IP counsel at a diversified high-tech multinational, an experienced patent litigator who has researched this issue, and a law professor specializing in patent remedies. They will analyze:
- The current state of relevant case law, including Halo, GlobalTech, Exmark, Eko, and the gaps where case law hasn’t yet reached;
- The factors in-house counsel must balance to determine the appropriate level of search diligence, including the industry and the risk of another patent covering R&D or new product, cost of search and of investment, and understanding of changing case law;
- Teachings of district court cases such as Motiva Patents v. Sony Corp.; HTC Corp., Nonend Inventions N.V. v. Apple Inc., et al.; and VLSI Tech. LLC v. Intel Corp.; and
- Evidence that a jury aware of alleged willful infringement is more likely to find infringement and ensuing defense tactics such as trying to knock willfulness allegations at the pleading stage or in summary judgment.
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