Update On Post-Halo Damages Enhancement

On June 13, 2016, the Supreme Court in Halo¹ unanimously eliminated the rigid two-part Seagate test and returned discretion to district courts to enhance damages under 35 U.S.C. § 284 for egregious cases of culpable infringement. This article reprises the Seagate and Halo decision, and discusses courts' post-Halo treatment of willful infringement and enhanced damages.

The Seagate Test

The damages statute, 35 U.S.C. § 284, provides that "the court may increase the damages up to three times the amount found or assessed." In Seagate,² the Federal Circuit adopted a two-prong barrier for patentees to clear before a district court could exercise its enhancement discretion under Section 284. First, a patent owner must "show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted an infringement of a valid patent." This first part of the test is not met if the infringer, during infringement