As my partner Tom Bejin discussed in this recent webinar, Addressing Willful Patent Infringement Post-Halo, the pendulum governing standards for enhanced damages for patent infringement under 35 U.S.C. § 284 gyrated again when the U.S. Supreme Court decided Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923 (2016). The Supreme Court rejected the two-part test of In re Seagate Technology, LLC, 497 F. 3d 1360 (2007), that required showing by clear and convincing evidence an "objectively high likelihood" that an accused infringer knew it was infringing. The Court both lowered the plaintiff's burden of proof and rejected the "rigid test" of Seagate. Thus, as you will see if you click the above link to Tom's slides exporing the law surrounding Halo, opinions of counsel and other prophylactic steps may have seemed less necessary after Seagate, but accused infringers are now well advised to consider these issues.
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