A finding of willful infringement in patent litigation allows
the judge to triple the damages award.1 In order to
prove willful infringement, the patent owner must prove: 1) that
the alleged infringer "acted despite an objectively high
likelihood that its actions constituted infringement of a valid
patent;" and 2) that this objectively high risk was
"known or so obvious that it should have been known" to
the alleged infringer."2 An alleged infringer
can defend against this allegation by showing that its invalidity
defense is objectively reasonable, and not
baseless.3 Recently, in Ultratec, Inc. v.
Sorenson Communications, Inc., the Western District of
Wisconsin held that the Patent Trial and Appeal Board's (PTAB)
decision to institute an AIA trial (i.e. an inter
partes review (IPR)) for the asserted patent does not
conclusively establish the reasonableness of an invalidity
defense.4 The court denied summary judgment of
non-willfulness, but indicated that the
