(2) the objectively high likelihood was "either known or so obvious that it should have been known" to the defendant (also called the "subjective recklessness" prong). (1) the defendant acted despite "an objectively high likelihood that its actions constituted infringement of a valid patent" (also called the "objective recklessness" prong) and There, the Court held a finding of willful infringement requires that the patentee prove by clear and convincing evidence that: Over the past decade, courts have used a two-part test for willful infringement fashioned by the Federal Circuit in the Seagate case. Section 284 of the Patent Act states that, where infringement occurs, courts "may increase the damages up to three times the amount found or assessed." Such treble damages have generally been reserved for cases of "willful or bad-faith infringement. This alert describes in detail how the Halo decision has changed the standard for enhanced damages awards, the underlying rationale behind the change in law, and how in-house lawyers and executives should adjust their opinion practices to mitigate the increased threat of enhanced damages. At a minimum, companies should seek to obtain an opinion of counsel as soon as the threat of an infringement lawsuit emerges (and in any event, prior to actual litigation) that evinces an accused infringer’s good faith belief that it does not infringe or that the asserted patent is invalid. Many courts have exercised the discretion afforded by Halo to place the issue of whether an accused infringer's conduct was willful-thus giving rise to enhanced damages-firmly in the hands of the jury to decide.
, which dramatically altered the landscape for proving and obtaining enhanced damages in patent infringement cases. Several recent court decisions in patent infringement actions reflect the significant impact of the Supreme Court's ruling in Halo Electronics, Inc.
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