While legal formalists may generally defer to clear legal rules, others respond in different ways. For example, as Karen Sandrik (Wilamette) writes, “For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents." Such strategic advice is offered, in part, to help defeat a patent holder's subsequent claim for enhanced damages.
In her recent paper, An Empirical Study: Willful Infringement & Enhanced Damages in Patent Law After Halo, Sandrik subjects this convention wisdom to data. Critically, the run of data (from 2010 through 2020) includes the Supreme Court's 2016 Halo decision where the Court wrote that enhanced damages are “designed as a ‘punitive’ or ‘vindictive’ sanction” for an infringer’s conduct that is “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.”
The data set includes all district court decisions on willfulness decided between 2010 and 2020. Exclusions from the data set include appeals as well as (interestingly) successful motions to dismiss willful infringement claims. As it relates to the latter exclusion, the author notes that successful motions to dismiss “are inconsistent standards post-Halo on what is needed to successfully plead a claim for willful infringement.” Key findings from the resultant data set (N=260) on pre- and post-Halo outcomes include: "(1) willfulness findings have increased by 27.8%; (2) enhanced damages findings have increased by 8.7%; and (3) judges are significantly more likely to find willfulness (representing an 18.6% increase in willfulness findings)." An excerpted abstract follows.
"... In this empirical study with data spanning 2010 to 2020, I provide a data-driven answer to whether this deliberate ignorance strategy is effective. The answer, in short, is that reading patents, conducting patent clearance searches, and/or responding to cease-and-desist letters does not, in isolation, open the door to enhanced damages. Finally, by employing an original data set to seek this answer and potential solutions to deliberate patent ignorance, this study provides empirical statistics regarding willful infringement and enhanced damages. This includes empirical statistics illustrating the impact of the 2016 Supreme Court decision, Halo Electronics v. Pulse Electronics.”
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