How do I disprove willful patent infringement?

How do I disprove willful patent infringement?

A patent is a set of exclusive rights granted to the inventor of a new invention.  To get a patent in the Untied States an inventor must prove that the invention is useful, novel and not obvious.  When the United States Patent and Trademark office grants an inventor a patent, that give the inventor the exclusive right to use the invention in the United States.  If someone uses the invention without the permission of the patent owner, that is considered patent infringement.  A patent owner can file a lawsuit to stop patent infringement and to get monetary damages for patent infringement which has occurred.

Filing a lawsuit is typically a last resort when two people cannot come to an agreement.  Lawsuits are time consuming, expensive and not guaranteed.  Patent infringement lawsuits are no exception.  The outcome of a patent infringement lawsuit depends on what a patent owner can prove in court. One of the things that a patent owner wants to prove in a patent infringement lawsuit is that the defendant willfully infringed on the patent.  If a patent owner can prove that the defendant acted willfully, the patent owner can get enhanced monetary damages.  Enhanced monetary damages means that the patent owner may be awarded up to three times their actual damages.

The United States Supreme Court articulated the standard that courts must follow when determining if a defendant willfully infringed on a patent in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct, 1923 (2016).  In that case the court held that he sort of conduct warranting enhanced damages has been described as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.  However, the Supreme Court has held that enhanced damages should not be awarded if the evidence at trial shows that the infringer knew about the patent and nothing more.  A plaintiff must prove that infringement was willful by a preponderance of the evidence which is a lower standard of evidence, making it easier for plaintiffs to prove willful infringement.

The Halo willful infringement standard means that if a patent owner can prove by a preponderance of the evidence that a defendant knew about a patent and willfully infringed on the patent, then the plaintiff can be granted enhanced damages.

The most obvious time enhanced damages would be applied would be when a patent infringer goes out of its way to find a patent and copy the invention in the patent.  A patent lays out exactly how to make an invention, it would be trivial for a malicious person to read a patent, learn how to make an invention and then start selling the invention.  Enhanced damages for willful patent infringement are intended to discourage that behavior.

But what about a company that genuinely wants to respect other peoples patents and believes in good faith that they are not infringing on a patent?  How can a good faith company avoid enhanced damages for patent infringement?  In Halo the United States Supreme Court did not give an exact rule on how a company can prove they acted in good faith, but many different lower courts have given guidance.

A company that wants to show that their infringement was not willful should 1) conduct reasonable patent investigation before selling a product 2) get a legal opinion about possible infringement.  A reasonable patent investigation should be performed by an engineer familiar with patents and how to read patent claims.  A legal opinion must be thorough and written by an attorney experienced in Untied States Patent Law.

A reasonable patent investigation and a legal opinion are evidence that infringement was not willful but do not guarantee a jury will not find infringement was willful.

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