Law Commons^™

Copycats, Relax - The Federal Circuit Lightens Up On Willful Patent Infringement, Sarah J. Garber

Missouri Law Review

"Willful" infringement is alleged in over 90% of patent cases. This is primarily because, under the Patent Act and Federal Circuit case law, a finding of willful infringement gives trial judges the discretion to award treble damages and attorney's fees to the patentee. Given that patent infringement actions can carry litigation fees of two million dollars or more, an award of punitive damages is a serious threat to accused infringers. A common and powerful defense to a willful infringement allegation is reasonable reliance on an opinion of counsel. Using this defense, the accused infringer can prove he acted in good …