Past the Tipping Point: Reforming the Role of Willfulness in the Federal Circuit's Doctrine of Enhanced Damages for Patent Infringement

Abstract

The Federal Circuit's recent decision in In re Seagate Technology, L.L.C. modified the standard for determining whether a patent has been infringed willfully, but left intact the existing doctrine that requires willfulness to justify enhanced damages under 35 U.S.C. § 284. This Comment presents several arguments as to why the current enhanced damages doctrine should be modified. The U.S. Supreme Court's recent decision in eBay Inc. v. MercExchange, L.L.C. on the availability of injunctive relief under 35 U.S.C. § 283 provides strong support to these arguments. Finally, the author proposes a flexible enhanced damages doctrine and compares it with a legislative solution currently being considered by Congress.