Just last week, we were talking about how the fear of being accused of "willful infringement" was once again distorting the purpose of the patent system
. If you're found willfully infringing, rather than just accidentally infringing, the damages can be tripled. For that reason, many companies now have policies telling employees that they are not
to search through patents, as any indication that they saw a specific patent could potentially be used as evidence of willful infringement. However, there is some good news on this front. The Against Monopoly blog
points out that a new appeals court ruling has raised the bar
on what is considered willful infringement to the point where the accuser must show "clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent."
It's interesting to see this ruling come out of CAFC, the appeals court that handles patent cases. The Supreme Court has been slapping down CAFC decisions
left and right lately, suggesting that it's unhappy with CAFC's previously lenient position on patents. Perhaps the folks at CAFC have gotten the message.