Journal Article

Objectively reckless standards of commerce: unanswered questions on wilful infringement

Laura P. Masurovsky and Jacob A. Schroeder

in Journal of Intellectual Property Law & Practice

Volume 5, issue 6, pages 435-440
Published in print June 2010 | ISSN: 1747-1532
Published online March 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq017
Objectively reckless standards of commerce: unanswered questions on wilful infringement

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Legal Context

In the U.S., the doctrine of willful infringement in patent law has undergone significant changes since the Federal Circuit issued its opinion in In re Seagate. While the court changed the standard to that of objective recklessness, questions remain as to what role the “standards of fair commerce” should play in this inquiry.

Key Points

If “standards of fair commerce” is to mean anything in the willfulness determination, it must mean that a willing licensee cannot, as a matter of law, be found to have acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. Otherwise, this is necessarily the case because there is always a risk that license negotiations will break down before an agreement is reached.

Practical Significance

This article suggests yet another way for the courts to limit willful infringement allegations, asserted in approximately 90% of patent infringement suits, to bring the doctrine of willful infringement in line with civil punitive damage awards.

Journal Article.  4072 words. 

Subjects: Arbitration ; Intellectual Property Law

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