Hiding Behind Clerical Errors – Lessons From Pavo Solutions Versus Kingston Technology Company

A patent confers on its owner the right to exclude others from practicing the invention claimed in the patent. In the United States, infringement becomes willful when the infringing activity is carried out deliberately and intentionally with prior knowledge of the patent (see Power Lift, Inc. v. Lang Tools, Inc., 227 U.S.P.Q. 435, 438 (Fed. Cir. 1985).

Recently, the US Court of Appeals for the Federal Circuit issued a decision in an ongoing dispute between Pavo Solutions, LLC ("Pavo") and Kingston Technology Company, Inc. ("Kingston") (Pavo Solutions, LLC v. Kingston Technology Company, Inc., CAFC, June 3, 2022), which addresses the questions of a) whether a district court can amend an evident clerical error in a patent; and b) whether the district court can find that there was willful infringement after correction of the clerical error is made and as a result thereof.