Enhanced Patent Infringement Damages Post-\u3cem\u3eHalo\u3c/em\u3e and the Problem with Using the \u3cem\u3eRead\u3c/em\u3e Factors

The United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s Halo opinion: factor 3, the infringer’s behavior as a party during litigation, and factor 5, the closeness of the case. I suggest that courts continue to use the remaining seven of the nine Read factors to guide their discretion. However, to the extent that courts consider a party’s litigation behavior and the closeness of the case, this is inconsistent with Halo