“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 ninth Read factors: whether the infringer attempted to conceal its misconduct.
| Case | Strong Evidence of Attempt to Conceal the Misconduct | Enhanced Damages? | Enhancement Multiple | Notes |
| Exergen Corp. v. KAZ USA, Inc., 2016-2315 (Fed. Cir. Mar. 8, 2018) | No | No | —
|
Enhancement was not warranted because the district court found that no concealment had occurred, no evidence of copying existed, no litigation misconduct occurred, and the plaintiff was able to “more than adequately vindicate its rights.” |
| 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 for whether defendant attempted to conceal the misconduct weighed in favor of enhanced damages. |
| Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259 (Fed. Cir. 1999) | No | No | —
|
Enhancement was not warranted because defendant had not attempted to conceal its infringement, engaged in no misconduct during litigation, had not copied the invention, and had evinced no motivation to harm plaintiff. |
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