Willful Infringement: When Patent Piracy Turns Egregious

Willful infringement is a patent law concept that applies when someone infringes a patent knowingly or with reckless disregard for the patent holder’s rights. It goes beyond accidental infringement, often involving a deliberate choice to use protected work despite awareness of the rights holder. With unintentional infringement, the infringer can still be required to pay damages, negotiate a license, or face an injunction to halt the infringing activities. If the infringement is deemed willful, however, this can lead to significantly increased damages, sometimes up to three times the original amount. 

This is something that patent holders need to be keenly aware of – both offensively and defensively. If found for infringement, is simply knowing about the competitor’s patent enough? What if it turned up in search results when examining prior art for your own invention? On the other side, if you’ve discovered that a competitor is infringing on you, what steps should you take to ensure that they’ve been clearly put on notice? The answers to these questions could mean millions. 

** Guest Host **

Tamany Vinson Bentz is our guest co-host today. Tamany is the founder of California IP Law, where she currently focuses on developing customized IP portfolios for businesses of all sizes. Prior to managing her own firm, she spent 20 years as a litigator in big law as a partner at both Venable and DLA Piper. 

** Episode Overview **

Tamany and Dave lead today's discussion with our all-star patent panel, delving deeply into all things willful infringement. Along the way, they discuss:

⦿ Willful infringement prior to two 2016 SCOTUS cases.
⦿ How the SCOTUS cases shaped assessment of willful infringement.
⦿ How this has been playing out in more recent cases, and what has and has not been viewed as willful or egregious.
⦿ And some practical tips on how and where to communicate notices if you feel like your patent rights are being infringed.

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Let us know what you think about this episode!