What does willfulness mean?
In Eko Brands, LLC v. Adrian Rivera Maynez Enterprises, Inc., the Federal Circuit explained that the willfulness inquiry concerns deliberate or intentional infringement. Egregiousness is considered at the separate stage when the court decides whether to enhance damages, rather than added as a requirement for the jury's willfulness finding.
When can damages be increased?
Section 284 authorizes an increase up to three times the amount found or assessed. Under Halo Electronics, Inc. v. Pulse Electronics, Inc., that decision is discretionary and enhanced damages are directed at egregious infringement behavior. A willfulness finding does not require the court to award treble damages.
What should happen after notice?
Preserve the notice, identify the asserted claims and accused products, and obtain a reasoned assessment of the actual issues. Do not assume silence alone proves willfulness or that a brief denial resolves it. The facts surrounding knowledge and conduct matter.
Is a formal opinion mandatory?
No. Section 298 prohibits using failure to obtain or present advice of counsel to prove willfulness or intent to induce infringement. Discuss the usefulness of an opinion for the particular product and decision rather than treating it as a compulsory formality.