Deep, Dark, and Unholy? Some of the law of willful infringement

In the four years since the Supreme Court’s Halo decision, district courts have split over whether a plaintiff may allege willful infringement when the defendant had no pre-suit notice of the patent. The Eastern District of New York (currently) flatly prohibits this practice, but courts in Texas and Delaware do not—and the Federal Circuit has recently upheld a willfulness verdict in one such case.


This issue casts a long shadow because patent owners that present willfulness evidence—often the most scandalous and gripping part of a trial—are significantly more likely to win on the underlying issues of infringement and validity.


The article attached below discusses recent developments in this area of the law and suggests tactics that accused infringers may use to create a compelling (and true!) counternarrative to the plaintiff’s willfulness case.


Finally, this article does not necessarily reflect the views of my firm or clients, and is not intended to be (and should not be taken as) legal advice.



2020
.09 Some of the law of willful infri
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