Originally published in The Metropolitan Corporate Counsel on June 23, 2012.

The Federal Circuit’s recent decisions have sought to address a number of issues relating to damages in patent cases. In its recent decision in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., No. 2010-1510, ___ F.3d ___ (Fed. Cir. June 14, 2012), (“Bard”),[1] the Federal Circuit made clear that the objective prong of the willfulness standard set forth in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc) (“Seagate”) is a question of law that may be based on mixed questions of law and fact, and that the determination of that prong is subject to de novo appellate review. While it will take some time to see the impact of Bard, the decision will have an impact on how the objective prong is determined and may make it more difficult for a patentee to obtain enhanced damages and attorneys’ fees.

Patent Damages Background

Section 284 of Title 35 of the United States Code sets forth the damages that are available to a patentee and permits a court to award up to trebled damages.[2] The Patent Act, 35 U.S.C. §§ 1-376, does not define when enhanced damages should be awarded; this issue has been the subject of many decisions over the years but largely turns on whether a defendant is found to be a willful infringer.