Patent Law

Sanford E. Warren Jr. and William Kennedy Jr. of Akin Gump Strauss Hauer & Feld LLP write that "[p]atent suits are particularly frightening for defendant companies because patent suits have the potential for astronomical damages."  The following is excerpted from their May 2008 article on the International Risk Management Institute, Inc.'s  website:

The Court of Appeals for the Federal Circuit recently redefined willful infringement. Patent cases are heard by federal district courts, and appeals to patent cases are heard by the Federal Circuit. As such, the Federal Circuit creates much of the controlling precedent for patent cases.

On August 20, 2007, the Federal Circuit ruled on willful infringement in its decision, In re Seagate Tech., LLC., 497 F.3d 1360 (Fed. Cir. 2007). In the decision, the Federal Circuit overruled its own precedent and held that "proof of willful infringement permitting enhanced damages requires at least a showing of objective recklessness." (Previously, regarding willfulness, an infringer was only under a duty of care to avoid infringement.)

They continue the article by discussing the following four cases:

• Black & Decker v. Bosch
• Innogenetics, N.V. v. Abbott Labs.
• TGIP v. AT&T
• Informatica v. Business Objects Data Integration

In Seagate, the Federal Circuit defined willful infringement as occurring when the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. In both Black & Decker and Innogenetics, the Federal Circuit demonstrated that it is not afraid to apply this new standard for willful infringement. In both cases, the court negatively treated the patentees' claims of willful infringement, which was predictable, given the court's decision to raise the bar for willfulness in Seagate. Similarly, the district courts have been reluctant to enhance damages based on the Seagate standard of willfulness.

Read the full article here.