“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 sixth Read factors: the duration of the infringer’s misconduct.
| Case | Strong Evidence of Lengthy Misconduct? | 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. |
| Funai Electric v. Daewoo Elec. Corp., 616 F.3d 1357 (Fed. Cir. 2010) | Yes | No | — | Enhancement was not warranted despite evidence that defendant continued infringing after receiving notice, and during the litigation, including after an adverse Markman hearing. Other factors favored against enhancement. |
| I4I Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) | Yes | Yes | 1.2x | Enhancement was warranted. Defendant started using the infringing products more than five years prior, 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. |
| Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259 (Fed. Cir. 1999) | Yes | No | — | Enhancement was not warranted despite the 10-year duration of defendant’s infringement because other factors did not favor enhancement. |
| SRI Intl. v. Advanced Technology Laboratories Inc., 127 F.3d 1462 (Fed. Cir. 1997) | Yes | Yes | 3x | Enhancement was warranted because defendant engaged infringed for five years after it had been contacted by plaintiff and because other 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 the duration of the misconduct, which would likely weight against enhancement. For example, the patents issued only a short time before the filing of the lawsuit. Moreover, other factors counseled against enhancement. |
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