Posts Tagged: "willful infringement"

Pro-patentee Patent Reform, the STRONG Patents Act Introduced in Senate

The STRONG Patents Act appears to be overwhelmingly favorable to innovators and patent owners. This legislation stands in stark contrast with the Innovation Act submitted in the House by Congressman Bob Goodlatte (D-Va) and shows a very different, alternative vision for the patent system.

District Courts should have more discretion to enhance patent damages

Infringers should not be able to arrogantly and recklessly violate patents for years but ultimately pay only the same amount they would have paid the patent owner for a license in the first place. Currently, however, that is the situation that exists, because an infringer can avoid being stuck with enhanced damages if the infringer’s attorneys, for the first time in the litigation, raise a newly-devised (but ultimately incorrect) argument that the patent is invalid or not infringed, even if this was not the actual reason why the infringer refused to take a license years earlier.

Halo v. Pulse – Progress on Willful Infringement Law at Risk?

While there are several facets of willful infringement law that the Halo concurrence would have the full court reconsider, the one that could have the greatest impact, and potentially unwind the patent reform gains made by Seagate, is the substantive test for award of enhanced damages under 35 U.S.C. § 284 for willful infringement.

Patent Reform Dead if CAFC Reviews Willfulness En Banc

In a concurring opinion, Judge O’Malley, who was joined by Judge Hughes, wrote that she felt constrained by the Federal Circuit’s precedent in In re Seagate and Bard Peripheral Vascular v. W.L. Gore, but that recent Supreme Court decisions call into question the continued viability of that precedent. As such, Judges O’Malley and Hughes have urged the Federal Circuit to reconsider en banc the standard for awarding enhanced damages under 35 U.S.C. 284. With willful damages back on the table future patent reform is in question.

Flashback Seagate: Indifference to Patent Rights of Innovators

After dispatching with Underwater Devices the Federal Circuit announced the new rules, which requires at least a showing of objective recklessness in order to support a finding of willful infringement and, thereby permitting enhanced damages. The Federal Circuit did not stop there though, but rather took the opportunity to explain that because of the abandonment of the affirmative duty of due care, there is no affirmative obligation to obtain opinion of counsel. Thus entered the era of intentional blindness, effectively killing the practice of obtaining an infringement opinion.

Microsoft Wins at CAFC, 25% Reasonable Royalty Rule Dies

While the Federal Circuit ruled that Microsoft did infringe and the patent claim in question (claim 19 of U.S. Patent No. 5,490,216) was valid, it was Microsoft who was the big winner here. The damages awarded by the jury to Uniloc were $388 million, which was set aside by the district court, a ruling that the Federal Circuit affirmed. The Federal Circuit also agreed there was no willful infringement. So while Uniloc has won at least something from Microsoft as a result of its infringement of a valid patent claim, it seems like it will be far less than the $388 million, particularly given the Federal Circuit threw out the 25 percent rule and said the entire market value rule was not applicable in this case.

Why Open Source Stalls Innovation and Patents Advance It

I have wondered out loud why we don’t have more of a bounce coming off this Great Recession. Certainly the historical dysfunctionality of the Patent Office prior to Director Kappos has something to do with that. It seems to me that open source has also lead many otherwise capable individuals to turn away from innovating. They are not looking for paradigm shifting open spaces and instead toward copying, or simply being blissfully ignorant about whether they are advancing or simply reinventing what others have already invented. The march forward has ceased in part due to the Patent Office backlog and due to an infatuation with open source and reinventing the wheel.

A Conversation with Gary Michelson About Patent Reform

In my conversation with Dr. Michelson he explained to me that while he benefited greatly from the patent system he would have benefited even more if the system worked better. At this point Dr. Michelson “does not have a dog in the fight,” as he explained, because with the exception of a few lingering applications his patent portfolio has been fully acquired and he stands to gain no additional revenues. Nevertheless, Dr. Michelson, the quintessential successful American inventor, would like to see the US patent system improve for the benefit of all independent inventors, the American economy and to promote real job growth. He has some excellent ideas, I agree with his positions on almost every front, and it is with his approval that I put my conversation with him on the record.