“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 first Read factors: whether the infringer deliberately copied the ideas or design of another.
| Case | Strong Evidence of Copying? | Enhanced Damages? | Enhancement Multiple | Notes |
| Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 670 F.3d 1171 (Fed. Cir. 2012) | Yes | Yes | 2x | Enhancement was warranted because the district court found that all Read factors except one weighed in favor of enhanced damages. |
| Ncube Corp. v. Seachange Intern., Inc., 436 F.3d 1317 (Fed. Cir. 2006) | Yes | Yes | 2x | Enhancement was warranted because defendant deliberately copied plaintiff’s invention in its product without investigating the scope of the patent, and the case for literal infringement was not close. |
| Engineered Products Co. v. Donaldson Company, Inc., 147 Fed. Appx. 979 (Fed. Cir. 2005) | Yes | Yes | 3x | Enhancement was warranted because defendant deliberately copied, failed to make a good-faith effort to avoid infringement, and because the case of infringement was not close. |
| Riles v. Shell Exploration and Production, 298 F.3d 1302 (Fed. Cir. 2002) | Yes | No | — | Despite evidence that defendant copied the patent, enhancement was not warranted because the issues of infringement, damages, and willfulness were close, and because defendant’s litigation behavior did not warrant enhancement. |
| SRI Intl. v. Advanced Technology Laboratories Inc., 127 F.3d 1462 (Fed. Cir. 1997) | Yes | Yes | 3x | Enhancement was warranted because defendant knew of plaintiff’s patent while its product was being developed, and was warned of infringement by in-house engineers. Moreoever, other factors favored enhancement. |
| Amsted Industries v. Buckeye Steel Castings, 24 F.3d 178 (Fed. Cir. 1994) | Yes | Yes | 3x | Enhancement warranted primarily due to defendant’s deliberate copying of the patented invention and inappropriate litigation behavior. |
| 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 evidence of copying existed, that no concealment or litigation misconduct had occurred, and that Plaintiff was able to “more than adequately vindicate its rights.” |
| WCM Indus., Inc. v. IPS Corp., 2016-2211 (Fed. Cir. Feb. 5, 2018) | No | No | — | Although there was evidence of copying from the defendant, the evidence was not directed to a product in the lawsuit. So this factor did not weigh strongly for enhancement. The district court erred in balancing the factors and in trebling damages. |
| I4I Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) | No | Yes | 1.2x | Although there was no evidence that defendant deliberately copied any of plaintiff’s products, enhancement was warranted because factors 2, 4, 6, 7, and 8 supported enhancement. |
| Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259 (Fed. Cir. 1999) | No | No | — | Enhancement was not warranted because defendant had not copied the invention, engaged in no misconduct during litigation, had evinced no motivation to harm plaintiff; and had not attempted to conceal its infringement. |
| Cybor Corporation v. FAS Technologies, 138 F.3d 1448 (Fed. Cir. 1998) | No | No | — | Enhancement was not warranted because the evidence regarding willfulness and copying was weak; the case was close; and the defendant did not litigate in an inappropriate fashion. |
| Virginia Panel Corporation v. Mac Panel Co., 133 F.3d 860 (Fed. Cir. 1997) | No | Yes | 1.1x | Only a slight enhancement was warranted because defendant’s copying was only recklessly indifferent as opposed to deliberate, and because on balance the other factors did not favor a larger enhancement. |
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