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Federal Circuit Judges Bid to Revisit Standard for Willful Patent Infringement

October 23, 2014

Fenwick & West patent litigation partner Darren Donnelly was quoted in a Law360 article regarding the call by two judges in the U.S. Court of Appeals for the Federal Circuit, for the full court to reconvene and reconsider the strict standard for proving willful patent infringement.

While upholding a $1.5 million infringement judgment for Halo Electronics Inc., the two Federal Circuit judges, Kathleen O'Malley and Todd Hughes, recommended the full court “re-evaluate our standard for the imposition of enhanced damages,” in light of a U.S. Supreme Court decision on fee-shifting in patent cases, which made it easier for judges to award attorneys’ fees to discourage frivolous and baseless lawsuits.

Donnelly told Law360 that even if the full court does take up the issue, he doesn’t expect a dramatic revision of the standards.

"They will tread carefully in this area," Donnelly said. "This is something the court will want to be sure it gets right, so I would not look for a sea change."

The full article is available through the Law360 website (subscription required).