V. Conclusion

The Federal Circuit's recent Seagate opinion significantly modified the standard for determining whether infringement of a patent was willful. Although Seagate is notable for this new willfulness doctrine, it is perhaps equally notable for failing to reform the role of willfulness in the court's companion doctrine for enhanced damages under § 284. Judge Gajarsa's concurring opinion in Seagate presents strong arguments, analyzed and augmented in this Comment, for reforming this doctrine. Whether awards of enhanced damages are intended to serve a punitive or compensatory purpose is a critical issue because it relates directly to the degree of culpability-expressed as “willfulness”-required to sustain such an award. As this Comment shows, neither the texts nor the legislative histories of the various Patent Acts dating back to 1793 give any meaningful guidance as to the purpose of enhanced damages or whether willfulness should be an implicit requirement.174

Nevertheless, meaningful guidance on these issues can be gleaned from other statutes prescribing equitable remedies and from cases interpreting these statutes. An analysis of other enhanced damages statutes shows that traditionally Congress either explicitly requires willfulness or else gives discretion to the courts to award enhanced damages based on broad equitable principles. Judicial interpretations of the conditions under which other title 35 equitable remedies are available also demonstrate the anomalous nature of the Federal Circuit's § 284 enhanced damages doctrine. Of particular importance is the Supreme Court's recent eBay decision that interprets the requirements for granting permanent injunctions under § 283. Taken together, the majority and concurring opinions in eBay strongly counsel courts to avoid unsupported statutory interpretations creating per se rules that conflict with general principles of equity. Thus, at a minimum, the Federal Circuit's § 284 enhanced damages doctrine is in tension with eBay.

Two different solutions to satisfy this need for reform were discussed. The first is a legislative initiative, H.R. 1908, that attempts to address this established need by codifying some aspects of the Federal Circuit's current willfulness and enhanced damages doctrines. The proposed § 284 includes an explicit requirement for willfulness as a predicate for enhanced damages and a relatively narrow definition of what behavior constitutes willfulness. The second is a flexible judicial solution that incorporates both the degree of culpability of the infringer and the equitable concerns between the two parties, according to the circumstances of the case. This solution provides a deterrent function consistent with damages under tort theory and is fully aligned with the eBay doctrine. In fact, as discussed in this Comment, there are some significant advantages to allowing courts to apply such a flexible judicial approach to make integrated, coherent determinations for the set of equitable remedies available for patent infringement. This approach is particularly appropriate when coupled with a clearer, more granular standard for culpability as articulated by the Federal Circuit in Seagate. While the proposed statutory constraints may provide some certainty if passed into law, there is a risk that they also may provoke unintended consequences once applied by the courts-especially the more frequent granting of permanent injunctions. For all of these reasons, the flexible judicial solution is likely to provide a more effective reform of the Federal Circuit's enhanced damages doctrine than the statutory solution proposed in H.R. 1908.