“Awards of enhanced damages are not to be meted out in a typical infringement case, but are instead designed as a punitive or vindictive sanction for egregious infringement behavior.” WCM v. IPS. There is “no requirement that enhanced damages must follow a finding of egregious misconduct.” Id. Rather, “courts should continue to take into account the particular circumstances of each case in deciding whether” to enhance damages. Id. “Because a finding of willful infringement does not command the enhancement of damages,” the Read v. Portec factors, “although not mandatory, do assist the trial court in evaluating the degree of the infringer’s culpability and in determining whether to exercise its discretion to award enhanced damages at all, and if so, by how much the damages should be increased.” WCM.
The Read factors are:
(1) whether the infringer deliberately copied the ideas or design of another;
(3) the infringer’s behavior as a party to the litigation;
(4) the infringer’s size and financial condition;
(5) the closeness of the case;
(6) the duration of the infringer’s misconduct;
(7) remedial action by the infringer;
(8) the infringer’s motivation for harm; and
(9) whether the infringer attempted to conceal its misconduct.
This post will focus on Federal Circuit decisions involving the third Read factors: the closeness of the case.
| Case | Strong Evidence of Plaintiff’s Case? | Enhanced Damages? | Enhancement Multiple | Notes |
| WCM Indus., Inc. v. IPS Corp., 2016-2211 (Fed. Cir. Feb. 5, 2018) | Yes | No | — | The district court erred in balancing the factors and in trebling damages. Despite that the jury verdict was not a close call and the evidence strongly supported plaintiff’s case, other factors counseled against enhancement. |
| Ncube Corp. v. Seachange Intern., Inc., 436 F.3d 1317 (Fed. Cir. 2006) | Yes | Yes | 2x | Enhancement was warranted. The case for literal infringement was not close, and the copying factor and the good-faith belief factor also favored enhancement. |
| Engineered Products Co. v. Donaldson Company, Inc., 147 Fed. Appx. 979 (Fed. Cir. 2005) | Yes | Yes | 3x | Enhancement was warranted because this was not a close case, as evidenced by the showing of willful infringement. Moreover defendant deliberately copied and failed to make a good-faith effort to avoid infringement. |
| Polara Eng’g Inc. v. Campbell Co., 2017-1974 (Fed. Cir. Jul. 10, 2018) | No | No | — | The district court was wrong to enhance damages by 2.5 because it failed to address the defendant’s public use defense, which presented a close question in the case. |
| Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 670 F.3d 1171 (Fed. Cir. 2012) | No | Yes | 2x | Enhancement was warranted because the district court found that all Read factors except one weighed in favor of enhanced damages. The closeness of the case was only slightly in favor of enhanced damages. |
| Funai Electric v. Daewoo Elec. Corp., 616 F.3d 1357 (Fed. Cir. 2010) | No | No | — | Enhancement was not warranted. Two of the three infringed patents were infringed under the doctrine of equivalents; and defendant prevailed on summary judgment as to three of the six patents initially noticed. Moreover other factors favored against enhancement. |
| Riles v. Shell Exploration and Production, 298 F.3d 1302 (Fed. Cir. 2002) | No | No | — | Enhancement was not warranted. The case was hard fought, and the jury could have found for defendant on infringement and willfulness, and could have awarded substantially less damages. Moreover defendant’s litigation behavior did not warrant enhancement despite evidence of copying. |
| Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259 (Fed. Cir. 1999) | No | No | — | Enhancement was not warranted given the closeness of the case, and that other factors did not favor enhancement. |
| Cybor Corporation v. FAS Technologies, 138 F.3d 1448 (Fed. Cir. 1998) | No | No | — | Enhancement was not warranted. Despite that defendant was found to infringe all twenty of the claims, the case was close in light of defendant’s justifiable albeit unsuccessful arguments regarding the prosecution history of the patent. Moreover other factors disfavored enhancement. |
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