Wednesday, April 27, 2022

Article in Today's Bloomberg Law Concerning Enhanced Damages

You might have expected the Supreme Court's 2016 decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. to have clarified the standard for awarding enhanced damages under U.S. patent law--and it did to some extent, but lots of other questions remain, or perhaps were even generated by Halo itself.  An article by Matthew Bultman in today's Bloomberg Law, titled Paying More in Patent Damages a Puzzle Ready for High Court, discusses a recent certiorari petition and amicus brief asking the U.S. Supreme Court to decide whether a showing of "egregious" infringement is a prerequisite for an award of enhanced damages.  The article also notes several other issues that have continued to divide the lower courts.   Among the latter are whether a finding of willful infringement can be based on the continuation of infringement after service of the complaint, in a case in which there is no evidence the defendant was aware of the patent prior to suit, or whether such knowledge must exist prior to suit; and whether, as I put it, "willful blindness or something short of literal intent to infringe can substitute for intentional, willful infringement."  And yes, the article does quote me, as well as Professor Karen Sandrik, who has written a terrific empirical study of post-Halo cases, previously noted here.  For previous discussion of some of these topics on this blog, see, e.g., here, here, and here.

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