Enhanced Remedies for Willful Infringement

What is Willful Infringement?

In a patent infringement lawsuit, willful infringement occurs when an infringer intentionally copies a patented invention or continues copying a patented invention after receiving notification of the patent infringement.  If a court finds that the patent infringement was willful, it could award the patent holder up to three times the damages determined in court, in addition to attorney’s fees.

Factors sometimes used in determining willful infringement include:

1. Whether the infringer blatantly copied the patent, or if the infringer legitimately attempted to design around the patent,
2. After receiving knowledge of the patent, if the infringer developed a good faith belief that the patent was invalid or not infringed
3. After knowledge of patent rights, if the infringer exercised due care to avoid infringement,
4. Whether the infringer received an attorney’s opinion, and
5. How the infringer acted during the litigation.

It is important to note that simply finding that there was no “literal infringement” does not absolve a party from liability for willfulness.

Enhanced Remedies

In normal patent infringement cases, monetary damages are awarded based on the amount of money a patent owner likely lost due to the patent infringement. In the case of willful infringement, the court can enhance monetary awards by up to three times that amount as a type of punishment for the infringer’s egregious actions. A court is also allowed to award attorney’s fees and costs to reimburse the patent owner for the expenses involved in litigation.