Enhanced Damages

Enhanced damages may be awarded up to three times the amount of damages originally assessed.

When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d).

— 35 U.S. Code § 284.

Enhanced damages are punitive.

This Court accordingly described §284—consistent with the history of enhanced damages under the Patent Act—as providing that punitive or increased damages could be recovered in a case of willful or bad-faith infringement.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1930 (S. Ct. 2016).

They should not be used to compensate the patentee for its loss.

Some early decisions did suggest that enhanced damages might serve to compensate patentees as well as to punish infringers. … Such statements, however, were not for the ages, in part because the merger of law and equity removed certain procedural obstacles to full compensation absent enhancement.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1929 (S. Ct. 2016).

Enhanced damages are discretionary.

In the Patent Act of 1836, however, Congress changed course and made enhanced damages discretionary … In 1870, Congress amended the Patent Act, but preserved district court discretion to award up to treble damages according to the circumstances of the case. Patent Act of 1870, §59, 16 Stat. 207.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1928-1929 (S. Ct. 2016).

The court’s discretion must be guided by sound legal principles.

Discretion is not whim[,] … its judgment is to be guided by sound legal principles.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1932 (S. Ct. 2016).

Enhanced damages reserved for egregious behavior.

180 years of enhanced damages awards under the Patent Act establish that they 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.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1932 (S. Ct. 2016).

The infringer's conduct is generally evaluated against their knowledge at the time of infringement.

[C]ulpability is generally measured against the knowledge of the actor at the time of the challenged conduct.

— Halo Electronics, Inc. v. Pulse Electronics, 136 S. Ct. 1923, 1929 (S. Ct. 2016).

Thus, in assessing the culpability of Pulse's conduct, the district court should consider, as one factor in its analysis, what Pulse knew or had reason to know at the time of the infringement of the Halo patents.

— Halo Electronics, Inc. v. Pulse Electronics, Inc., 831 F. 3d 1369, 1381 (Fed. Cir. 2016).