A Review Of Willfulness Findings In Hatch-Waxman Actions

By Brian Coggio and Ron Vogel (September 19, 2017, 12:40 PM EDT) -- The U.S. Supreme Court recently relaxed the evidentiary showing and lowered the burden of proof required to support a holding of willful infringement and attorney fees under 35 U.S.C. section 285. See, e.g., Halo Electronics Inc. v. Pulse Electronics Inc.,[1] Octane Fitness v. ICON Health & Fitness.[2] In Halo, the court overturned the previous willful infringement standard of In re Seagate Tech.[3] and held that willful infringement need only be proved by a preponderance of the evidence, rather than the previous clear and convincing evidentiary standard. Halo also eliminated the requirement that objective recklessness be shown:...

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