Mega Verdicts in U.S. Patent Litigation: Willful Infringement, Exceptionality & PTAB Challenges

Mega Verdicts in U.S. Patent Litigation: Willful Infringement, Exceptionality & PTAB Challenges

View Session Speakers

In September 2021, in SRI v. Cisco, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion reversing a district court’s denial of SRI International’s motion to reinstate the jury’s willfulness verdict against Cisco Systems, Inc., restoring the district court’s award of enhanced damages, and affirming an award of attorney fees for SRI. The Federal Circuit specifically explained that it had not previously intended to create a heightened test for willful infringement, although it understood why the district court read prior statements from the court as having done so. The “wanton, malicious, and bad-faith behavior” language referred to conduct warranting enhanced damages, not willful infringement.

So, after SRI v. Cisco, it seems clear that defendants who know they are infringing are willfully infringing. In recent months there have also been several cases where the Federal Circuit has upheld the award of attorneys’ fees pursuant to 35 U.S.C. 285.

Meanwhile, VLSI was awarded over $2 billion by a jury in the Western District of Texas, which led to OpenSky Industries, LLC to file inter partes reviews challenging VLSI patents. What has recently come to light, however, is that attorneys representing OpenSky have made offers to “settle” the IPR cases that stretch the bounds of ethics, and which look like opportunistic use of the Patent Trial and Appeal Board (PTAB) to force VLSI into settling regardless of the merits of the case.

This panel will explore the range of conduct presently occurring in U.S. patent litigation, including what conduct warrants a finding of willful infringement, the conduct that supports a finding of exceptionality, when one is appropriate but not the other, whether the strategy of efficient infringement may require recalibration to contemplate the possibility that treble damages and/or attorneys’ fees could be awarded and affirmed on appeal, and how patent owners can deal with opportunistic challenges at the PTAB after mega verdicts.

CLE Materials (Requested in Virginia only)

OpenSky Attorney Emails Expose the Seedy Underbelly of PTAB Practice

CAFC Clarifies Willful Infringement Standard, Reinstating Jury Verdict and Enhanced Damages for SRI International

Counseling Clients on What Constitutes Exceptionality in Patent Litigation: A View from Delaware