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The Supreme Court's decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. overruled the United States Court of Appeals for the Federal Circuit's long-standing Seagate test and empowered district courts to exercise their discretion in deciding whether to enhance damages for willful patent infringement. In the three years since the Halo decision, district courts have developed their own approaches to addressing willfulness allegations at the various stages of litigation, including pleading, summary judgment, trial, and post-trial. This Article observes trends in how district courts have addressed willfulness claims at each stage of litigation, highlights factors courts have considered when declining to enhance damages for an infringer's egregious misconduct, and identifies practice tips in view of the emerging trends in the case law.
INTRODUCTION
To punish and deter willful or bad-faith infringement of valid and enforceable patents, infringers found to willfully infringe may face enhanced damages. The patent law system has long permitted treble damages for infringement of a valid patent. Since the Patent Act of 1793, Congress has allowed (and, for some time, mandated) treble damages if a patent owner prevails on its infringement claim. The current iteration of the patent damages statute simply states that "the court may increase the damages up to three times the amount found or assessed."1 In an attempt to interpret the patent damages statute, courts have repeatedly weighed in on the appropriate standards for determining whether infringing conduct is willful and, as a result, damages may be enhanced. Most recently, the Supreme Court discussed enhanced patent damages in Halo Electronics, Inc. v. Pulse Electronics, Inc.2 In Halo, the Court considered the Federal Circuit's two-part test in In re Seagate Technology, LLC and rejected it as unduly rigid and inconsistent with the patent damages statute.4 The Court emphasized that the statute "gives district courts the discretion to award enhanced damages against those guilty of patent infringement."5 Recognizing, however, that discretion is not whim, the Court emphasized that "district courts are 'to be guided by [the] sound legal principles' developed over nearly two centuries of application and interpretation of the Patent Act."6 And in accordance with the statute's grant of discretion to the district court, the Supreme Court held that its decision whether to award enhanced damages, and any resulting...