The Evolution of the Objective Recklessness Standard in Cases Following Seagate

May 7, 2009 Published Work
Presented in Manhattan on April 30, 2009 at the 25th Annual Joint Patent Practice Seminar

In re Seagate Technology, which was decided en banc by the Court of Appeals for the Federal Circuit in August 2007, replaced the prior standard for determining whether an infringer committed willful patent infringement with a new standard that thus far, has made it more difficult for patent owners to prove willful patent infringement. In re Seagate Technology, LLC, 497 F.3d 1360, 2007 WL 2358677, 83 U.S.P.Q.2d 1865, (Fed. Cir. (N.Y.), August 20, 2007 (Misc. No. 830.)). This change significantly affects damages a patentee can receive for infringement as a patent owner must establish willful infringement as a prerequisite to qualify for enhanced damages under 35 U.S.C. § 384. Beatrice Foods Co. v. New England Printing & Lithographing Co., 923 F.2d 1576, 1578 (Fed.Cir.1991).

The focus of this paper is to provide a review of cases that have considered the Seagate standard and either found that no willful infringement occurred or if so, awarded no enhanced damages. The ratioale underlying the post-Seagate decisions are explored to identify factors relied on by courts in deciding that an infringer did not act with objective recklessness and therefore did not commit willful patent infringement.