Supreme Court Abolished Federal Circuit's Test for Willfulness -

On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016), the Supreme Court unanimously abrogated the Federal Circuit’s 2007 decision in In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007). That decision had established the standard for finding willful infringement, which is the predicate for awarding enhanced damages in patent infringement cases.

Seagate held that a plaintiff seeking enhanced damages must show that the infringement was willful under a two-pronged inquiry. Id. at 1371. First, the patent owner had to “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Id. Objective recklessness would not be found if the accused infringer “raise[d] a substantial question as to the validity or noninfringement of the patent” during the infringement proceedings. Halo Elecs., 579 U.S. ___ (slip op., at 5). Second, if it could establish objective recklessness, the patent owner then had to show, again by clear and convincing evidence, that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Seagate, 497 F.3d at 1371.