“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 seventh Read factors: remedial action taken by the infringer.
| Case | Strong Evidence of Lack of Remedial Actions? | 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. |
| I4I Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) | Yes | Yes | 1.2x | Enhancement was warranted. Defendant failed to conduct an infringement analysis after being notified of the patent during the period of infringement, and other factors favored enhancement. |
| Metabolite Lab., Inc. v. Laboratory Corp., 370 F.3d 1354 (Fed. Cir. 2004) | Yes | Yes | 2x | Enhancement was warranted. Defendant’s infringement began in 1998 without any attempts to remedy the infringement. Moreover other Read factors favored enhancement. |
| WCM Indus., Inc. v. IPS Corp., 2016-2211 (Fed. Cir. Feb. 5, 2018) | No | No | — | The district court erred in balancing the factors and in trebling damages. The district court did not analyze remedial actions by the defendant. For example, the defendant attempted to take remedial action when it modified its classic product and began selling its revised product during the litigation. Moreover, other factors counseled against enhancement. |
| Engineered Products Co. v. Donaldson Company, Inc., 147 Fed. Appx. 979 (Fed. Cir. 2005) | No | Yes | 3x | Enhancement was warranted despite defendant’s good-faith efforts to design around the patent. The defendant deliberately copied, failed to make a good-faith effort to avoid infringement, and the case of infringement was not close. |
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