The Problem of Willfulness in Patent Infringement Litigation

Abstract

The Federal Circuit decision in Seagate represented a sea change in patent law on the issue of willfulness. In the generation of case law from Underwater Devices to Seagate, the Court held that alleged patent infringers had a duty of care to obtain an opinion of counsel as a rebuttal to the belief that an infringed patent was invalid and not infringed. The Seagate Court overruled the need for a duty of care and instituted an “objectively reckless” standard for willful infringement that represented a high bar for proof. The Seagate Court erred in several ways in changing the willfulness standards. Further, the Court failed to provide a meaningful interpretation of recklessness. The consequences of these errors are to severely constrain the willfulness standard and its deterrence effect to balance patentee rights.