The 2012 jury verdict form in Halo v. Pulse asks “Has Halo proven that it is highly probable that Pulse’s infringement was willful?” The jury answered “YES.”
Judge Pro instructed the jury that:
Halo must prove willful infringement by clear and convincing evidence. This means Halo must persuade you that it is highly probable that prior to the filing date of the complaint, Pulse acted with reckless disregard of the claims of Halo’s patents. To demonstrate such reckless disregard, Halo must persuade you that Pulse actually knew or it was so obvious that Pulse should have known, that Pulse’s actions constituted infringement of a valid patent. In deciding whether Pulse acted with reckless disregard for Halo’s patents, you should consider all of the facts surrounding the alleged infringement including, but not limited to, whether Pulse acted in a manner consistent with the standard of commerce for its industry. You should base your decision on the issue of willful infringement on all of the evidence, regardless of which party presented it.
When it originally denied enhanced damages, the district court did not mention this verdict but rather focused on its conclusion that Pulse had a legitimate (but ultimately losing) obviousness defense sufficient to defeat the ‘objectively reckless’ portion of the Seagate willfulness analysis.
On remand the district court will be hard-pressed to find that the infringement was not willful – based upon the apparently unchallenged verdict. Still, it will be within the district court’s discretion to decide whether the willfulness warrants enhanced damages under Section 284. If enhanced damages are warranted, the district court must then determine how much to award (with an upper limit of treble damages).
The setup thus-far appears to fairly neatly wrap up the case in Halo’s favor in terms of enhanced damages. Perhaps the only abuse-of-discretion at this point would occur if the district court refused to award any enhancement at all. In the four-years since the 2012 jury verdict, Judge Pro has retired and a new judge assigned to the case – it will be interesting to see his take on this decade-long litigation.