Posts Tagged: "willful patent infringement"

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.

The relative paucity of design patent jurisprudence regarding the legal remedy of damages and the equitable remedy of an accounting for the infringer’s profits, makes clear that while an award of damages for patent infringement may be enhanced under 35 U.S.C. § 284 for willful infringement, and award of profits under 35 U.S.C. § 289, may not be enhanced under Section 284. While this distinction may appear important to one who wishes to obtain an enhancement of the damages award for willful infringement, the jury verdict form in Apple v. Samsung leaves one clueless as to whether the monetary award for infringement of 18 Samsung devices was an award of damages, an award of profits, or some combination of the two.

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.

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.

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.

Yesterday, Leonard Davis, a United States District Court Judge in the Eastern District of Texas, ordered Microsoft Corporation to stop selling Word, an order that becomes effective in 59 days (i.e., 60 days from yesterday).  The permanent injunction issued after the conclusion of a patent infringement lawsuit brought by i4i Limited Partnership, a litigation where Microsoft was found to infringe…