Enhanced Patent Damages: Trends IP Attorneys Should Know

September 8, 2023

Expanded Definition of Willful Infringement:

Courts have been broadening their interpretations of willful patent infringement, potentially leading to enhanced damages. IP attorneys need to stay updated on these evolving definitions to advise clients effectively.


Consideration of Post-Filing Conduct:

Recent cases have shown that courts are increasingly considering a defendant’s post-filing conduct when determining enhanced damages. This shift underscores the importance of ongoing diligence and ethical practices for businesses involved in patent litigation.


Enhanced Damages Awards on the Rise:

There has been a notable increase in the number and size of enhanced damages awards in patent cases. IP attorneys should be prepared to advocate for their clients’ interests in this changing landscape.


The Halo Effect:

The Supreme Court’s Halo decision clarified the standard for awarding enhanced damages, making it easier for courts to exercise their discretion in favor of enhanced awards. IP attorneys should understand the implications of this ruling on their cases.


Apportionment of Damages:

The Federal Circuit has been emphasizing the importance of apportioning damages in patent infringement cases. IP attorneys should be well-versed in these apportionment principles to effectively represent their clients.


Preventive Measures:

Given the potential financial consequences of enhanced damages, IP attorneys should work closely with their clients to implement preventive measures, including conducting patent searches and clearance analyses to mitigate risks.


Global Impact:

The impact of enhanced patent damages is not limited to the United States. IP attorneys working on international patent cases should be aware of these trends and their potential implications in cross-border disputes.


Litigation Strategy Adjustments:

As the landscape evolves, IP attorneys may need to adjust their litigation strategies to account for the increased risk and potential impact of enhanced damages in patent cases.

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