As noted in our last Newsletter, the US Supreme Court recently determined that a plaintiff who succeeds in establishing willful infringement of a valid patent should face a reduced burden for recovery of not only actual damages (and entry of an injunction), but also attorneys’ fees and enhanced damages of up to triple the actual damages. In a nutshell, plaintiffs no longer need to satisfy any standard of proof other than the traditional civil ‘preponderance of the evidence’ test, and the egregious nature of the defendant’s actions will have nothing to do with the defenses which they put forth at trial. 

This changes the analysis for both patent-holders who seek to redress infringement, but also those considering a challenge to an existing patent or who have been advised to cease and desist in their conduct. While a patent-holder is still inviting a probable challenge to their patent’s validity when they sue for infringement, the Court’s holding improves their potential return if they are successful in their defense of the patent and demonstration of its infringement.