Halo eliminated the rigid two-part test, leaving enhancement to district court discretion for egregious conduct. Knowledge of the patent is required, and enhancement is not automatic upon a willfulness finding.
Opinion of counsel is relevant but not required.
Alternative Names:
Willfulness|Willful Patent Infringement
Why it Matters?
Halo made enhancement more available by removing the objective recklessness prong, which had permitted a defendant to defeat willfulness through any reasonable litigation defense regardless of pre-suit conduct. Pre-suit knowledge and conduct now drive the analysis. Opinion of counsel remains relevant to good faith, though obtaining one waives privilege over the subject matter, which is the tradeoff.
Frequently Confused with
Related terms
Frequently asked questions
What did Halo change?
What is the opinion of counsel tradeoff?
