Exposure to Enhanced Damages After Halo

Michael K. Mutter and Shawn A. Hamidinia, Ph.D., for World Intellectual Property Review

The Halo decision on wilful patent infringement has made it desirable to accumulate evidence of good faith at the time of conduct in order to avoid enhanced damages.

As discussed in WIPR November/ December 2016, 35 USC §284 allows for the recovery of up to three times the actual patent infringement damages in exceptional cases arising from wilful infringement. The US Supreme Court’s 2016 decision in Halo Electronics v Pulse Electronics changed US law that had been in effect since 2007 and returned the determination of wilfulness to a triable jury question.

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