Patent Happenings

Role of Litigation Defenses Post-Seagate

Before Seagate,¹ defenses to infringement developed during the course of litigation had an uncertain role in determining whether the accused infringer willfully infringed the patent. Federal Circuit precedent instructed that it was "generally inappropriate" to find willful infringement "when the infringer mounts a good faith and substantial challenge to the existence of infringement."² Putting teeth into the "substantial" requirement, other Federal Circuit precedent instructed that a defense merely passing muster under Rule 11 would normally not defeat a charge of willful infringement.³ But other precedent instructed that "defenses prepared for a trial are not equivalent to the competent legal opinion of non-infringement or invalidity which qualify as ‗due care' before undertaking any potentially infringing activity."⁴ This led one to question whether litigation defenses could ever show that an accused infringer had