Recently, the Supreme Court agreed to hear two cases which involve questions regarding the proper standards for willful patent infringement and the enhancement of damages for infringement. The Patent Act provides that damages in a patent infringement lawsuit may be enhanced where there is clear and convincing evidence that the infringement was willful. Willful infringement may be found where: 1) there was an objectively high likelihood that the infringer’s actions constituted infringement, and 2) this likelihood was either known or so obvious that it should have been known to the accused infringer. Further, “[o]bjective recklessness will not be found where the accused infringer’s ‘position is susceptible to a reasonable conclusion of no infringement.’”
This is significant because the Supreme Court does not have to take every case that it is requested to hear and usually declines to hear most cases. In order to request for the Supreme Court to take on a case the petitioner must file a writ of certiorari. The writ of certiorari in the Stryker Corp. case, supra, focuses on whether proof of willful infringement should be a prerequisite for enhanced damages in patent infringement cases. The writ makes an analogy to the Supreme Court’s recent softening of the standard for attorneys’ fee awards in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749 (2014) for support. Further, the writ notes that the relevant statute does not explicitly use the term “willful” and criticizes the ability of alleged infringers to avoid a finding of willful infringement by being able to show a plausible defense, even in some situations, where the defense was not known to the alleged infringer prior to litigation. The main question for the Supreme Court to decide appears to be whether proof of willfulness should be a prerequisite to enhancement of damages or if the decision should be left to the District Court’s discretion based upon an analysis of the totality of the circumstances.
If the Supreme Court rules in favor of the petitioners it will be a big victory for patent holders as it will become easier to obtain enhanced damages against patent infringers. The Patent Statute allows for damages to be enhanced up to three times. Our firm will be monitoring the status of these cases. Please contact our office if you have any questions regarding the information in this article.
Daniel Devine, Esq.
Santucci Priore, P.L.
 See, Halo Electronics, Inc. v. Pulse Electronics, Inc., et al., No. 14-1513, 2015 WL 3883472 (Oct. 19, 2015) and Stryker Corp., et. al. v. Zimmer, Inc., et. al., No. 14-1520, 2015 WL 3883499 (Oct. 19, 2015). These cases have been consolidated for hearing by the Supreme Court.
 See, 35 U.S.C. § 284.
 See, Stryker Corp. v. Zimmer, Inc., 782 F.3d 649, 660-661 (Fed. Cir. 2014).
 Id. at 661 (internal quotations omitted).
 See, http://www.scotusblog.com/wp-content/uploads/2015/10/Stryker-Petition-for-Certiorari.pdf
 See, 35 U.S.C. § 284.