Professor Ronald Mann has an interesting post: Argument aalysis: Justices unsettled on standard for enhanced damages in patent cases on the SCOTUS blog.
More specifically, the Supreme Court hearing revisits how to interpret 35 U.S.C. 284, which states "Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
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."
Commentators are speculating this case will change the standard in favor of patent owners, but I think Professor Ronald Mann has a more realistic view based on the hearing that the justices are unsettled and struggling as to the standard for enhanced damages.
In my opinion, Justice Scalia "irreverent" and insightful views were missed. At least Justice Breyer's insistence that big companies are often threatening little companies with enhanced damages is an "EFF balloon" that needed to be "burst" by someone. Justice Breyer's narrow interpretation when to award enhanced damages makes it too difficult to obtain them and would encourage patent infringement by big companies.
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