On October 19, 2015, the Supreme Court consolidated and granted certiorari in Halo Electronics, Inc. v. Pulse Electronics, Inc., et al. and Stryker Corporation, et al. v. Zimmer, Inc., et al., both of which concern enhanced patent infringement damages under 35 U.S.C. § 284. At issue in both cases is the question of whether the Federal Circuit is correct in requiring a willfulness finding under the rigid, two-part Seagate test to award enhanced damages. Under Seagate, finding willfulness requires the patentee to prove that an infringer acted "despite an objectively high likelihood that its actions constituted infringement" and that such risk was known, or should have been known, to the infringer. The question of this test's propriety is particularly ripe given the Supreme Court's decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc. during its last term, where a similarly rigid test for imposing an award of attorney's fees was rejected in favor of a more flexible and discretionary determination. Stay tuned for further updates on this issue. In the meantime, please see Nutter's prior analysis of the Octane decision.
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