Objectively Reckless Standards of Commerce: Unanswered Questions on Willful Infringement

Following In re Seagate Tech, LLC, an appellate decision by the United States Court of Appeals for the Federal Circuit, the new standard of objective recklessness determines whether an accused infringer will be subject to increased damages for willful infringement. Willful infringement is a question of fact often reserved for the jury in U.S. civil litigation, so the jury must determine whether a corporation’s activities are objectively reckless. This causes certain mischief when a willing licensee is later accused of patent infringement; for the purposes of this article, a “willing licensee” is a party who is contacted by a patentee, is asked to take a license, and engages in good faith licensing discussions. This article, by Finnegan partner Laura Masurovsky, explains that the role that “standards of fair commerce” should play in the determination of willful patent infringement remains unclear, even after Seagate, and suggests that a willing licensee should not be found liable for treble damages under willful infringement simply because he knew about the patent during license negotiations and continued to import, make, use or sell an allegedly infringing product.