Willful Infringement After Halo

In June 2016, the United States Supreme Court issued a decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., discarding the Federal Circuit's Seagate test for finding willful infringement and awarding enhanced damages in patent cases. This article discusses Halo decision and its likely effects on patent litigation in the United States.

Background

Section 284 of the U.S. Patent Act provides that, in a case of infringement, courts "may increase the damages up to three times the amount found or assessed." Prior to Halo, the Federal Circuit had decided that a plaintiff seeking enhanced damages must show that the infringement was "willful," and adopted a two-prong test for establishing willfulness, in In re Seagate Technology, LLC, 497 F. 3d 1360 (Fed. Cir. 2007). Under the first objective prong, a patent owner must "show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement