Julie Langdon At the end of October, the Supreme Court announced that it will review the issue of when enhanced damages may be awarded to a patentee with a finding of infringement. Stryker Corp. v. Zimmer, U.S., No. 14-1520, Halo Electronics, Inc. v. Pulse Electronics, Inc., U.S., No. 14-1513.In 2007, the Federal Circuit adopted a two-part test for determining willful infringement. Patentees must show that (1) “the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent,” and (2) the infringer knew, or should have known, the risk of infringement. In re Seagate Technology LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007). The test is rigid and has made it extremely difficult for a patentee to prove willfulness. Generally, patentees, including those in the Stryker and Halo cases, have a difficult time proving the objective…
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