Survey on Willful Infringement

Prof. David C. Berry (Cooley) is researching how In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007)(en banc) has altered the practical landscape of willful patent infringement. One goal of the project is to collect data from persons with recent experience evaluating whether an organization's activities create a risk of patent infringement, and deciding how to respond to that risk. Current or recent in-house counsel interested in participating in the research project are invited to complete a confidential, on-line survey at:

The survey was developed in conjunction with the ABA Section of Intellectual Property Law, Special Committee on Patent Analysis and Opinions of Counsel Post-Seagate. It has approximately 30 questions, and can be completed in less than 15 minutes. The survey link will be open for responses until February 15, 2011.

4 thoughts on “Survey on Willful Infringement

  1. 4

    Poor sarah.

    poor poor sarah

    you touch my heart strings,
    the vibrations they sound
    the emotions they brings
    round and round

    give em time to heal
    but heal you must desire
    or else the deal
    will be thrown to the fire

  2. 3

    And because you were long gone,
    My Jurisdiction was so,
    the blaming of all the others,
    was considered a NO NO.

    But that’s not nearly so.
    There is the Pony Express,
    That kept it all from me,
    and made a bigger mess.

    And then there are the others,
    I didn’t list on the page.
    So Jurisdiction surely,
    wasn’t something they could gage.

  3. 2

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  4. 1

    I didn’t wade through all 16 pages of the survey, but unquestionably Seagate has lowered the previously much higher odds for an award of enhanced damages if infringement is found, in some cases, so it’s a relevant topic. The survey is attempting to see how much that actually affects actual litigation decision-makers. But it needs to also address how that has affected those making licensing decisons.

    Also, in the cases where eBay does NOT apply, the threat of increased damages can be rather academic as compared to the usually much greater economic threat of a product injuction. Thus, not much of a decisional factor.
    Furthermore, I don’t think the Federal Circuit had that much choice as to narowing, in Seagate, its previously allowed scope of willful infringement. It was facing another likely Supreme Court appeal and/or pending legislation that might have been even stricter.

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