So far this term, the Supreme Court has agreed to hear only one patent issue – enhanced damages, a.k.a. willfulness. Two separate lawsuits have been joined together for the Supreme Court hearing: Halo and Stryker. An expanded one-hour has been allotted for the yet-to-be-scheduled oral arguments.
Petitioners have now filed their merit briefs.
In all likelihood, the Supreme Court will continue its decade-long path of rejecting the Federal Circuit’s penchant for patent-centric bright-line tests and instead require that the Federal Circuit simply follow the statute and general law associated with enhanced and punitive damages. See., e.g., Octane Fitness (2014), MedImmune (2007), and eBay (2006). In particular, the statute’s only statement on enhanced damages gives deference to the district court to act within the treble-damages limit, indicating that “the court may increase the damages up to three times the amount found or assessed.” The most parallel case-on-point is Octane Fitness where the 2014 Supreme Court eliminated the Federal Circuit’s rigid test for attorney fee shifting under Section 285.
The question of enhanced damages is only relevant once the asserted patent is adjudged enforceable and infringed and damages awarded for the infringement. Then, under Federal Circuit rule, enhanced damages can only be awarded upon clear-and-convincing evidence that (1) the infringer acted despite an objectively high likelihood that its conduct was infringing, and (2) the infringer knew or should have known of the risk.
Question presented in Halo:
Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness . . . for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.
Questions presented in Stryker:
Whether the Federal Circuit has erred in imposing a rigid, two-part threshold test on the flexible text of Section 284.
Whether a district court has the discretion under Section 284 to award enhanced damages for the deliberate copying of a patented invention.
Both briefs highlight the Supreme Court’s pre-1952 statements that the power to enhance damages is within the district court’s discretion. Of course, the statute at that point was perhaps more explicit that enhanced damages were “in the power of the court.” But, the current statute is almost on point – “the court may increase the damages.” And, in the 1983 General Motors case, the Supreme Court wrote that the 1952 Patent Act’s implementation of Section 284 was simply a codification of existing law.
Briefing will continue into January with oral arguments to come after that.
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 Halo Electronics, Inc. v. Pulse Electronics, Inc., et al., Supreme Court Docket No. 14-1513 (2015).
 Stryker Corporation, et al. v. Zimmer, Inc., et al., Supreme Court Docket No. 14-1520 (2015).
 Octane Fitness v. Icon Health & Fitness (2014) (fee-shifting under § 285 sits within the discretion of the district courts based upon a totality of the circumstances rather than a rigid framework involving both subjectively and objectively bad behavior.)
 MedImmune v. Genentech (2007) (test for declaratory judgment is more flexible than what had been allowed by the Federal Circuit).
 eBay v. MercExchange (2006) (traditional equitable test for a permanent injunction applies in patent cases).
 See Birdsall v. Coolidge, 93 U.S. 64 (1876) and Topliff v. Topliff, 145 U.S. 156 (1892).
 Gen. Motors v. Devex (1983) (case focused on prejudgment interest).