The Trouble with Treble Damages: Ditching Patent Law’s Willful Infringement Doctrine and Enhanced Damages

In a patent infringement lawsuit, a plaintiff often asserts a willful infringement claim and enhanced damages as a remedy. Under current U.S. patent laws, courts have the discretion to reject a claim for willful infringement and decline increasing damages, even if the jury returns a finding of willful infringement. This creates an unnecessary drain of resources on the court system and alleged infringers.The enhanced damages provision in patent law is also often an unavailable remedy for plaintiffs even though plaintiffs almost always assert a willful infringement claim, often simply wasting courts’ and litigants’ financial resources. The enhanced damages provision also frustrates the purpose of the existence of patent laws, and patent owners actively avoid learning about new patents for fear that this knowledge will lead to allegations of willful infringement in the future. Finally, no other nation in the world has a remedy like the enhanced damages provision, and the existence of the remedy frustrates goals to harmonize global intellectual property laws. This Note examines these issues presented by the enhanced damages provision. This Note analyzes alternatives for the enhanced damages remedy and considers whether abandoning the current law would appropriately deter patent infringement. Ultimately, this Note recommends that the entire enhanced damages provision and its associated willful infringement doctrine should be removed from the U.S. patent laws.

The full text of this Note is available to download as a PDF.