At a glance, two of the Supreme Court’s most recent cases have little in common: one involves electronic components in circuit boards, and the other involves a pressurized irrigation system for cleaning wounds during surgery. But the Court recently granted certiorari and combined the cases to decide the standard through which lower courts should decide willful infringement in patent cases.

Generally speaking, willful infringement may occur when someone intentionally infringes on someone else’s patent. It is an important threshold of proof because if a plaintiff can show willful infringement, the plaintiff may be entitled to treble damages—or three times the amount of damages that might otherwise be awarded. Lowering that threshold might make it easier, therefore, for plaintiffs to seek treble damages.

Generally, the Federal Circuit, one of the most important patent law jurisdictions, currently evaluates willful infringement using a two-part test. First, courts ask whether an alleged patent infringer acted despite “an objectively high likelihood” of infringement. Second, the alleged infringer must be “subjectively aware of that risk” of infringement.

Some experts argue that this patent willful infringement standard could be bad for smaller companies who are threatened with patent lawsuits because they may be more willing to settle, faced with the potential for even bigger damages amounts. On the other hand, others argue that the current standard makes it too easy for companies to avoid patent willful infringement because they can assert a wide range of plausible defenses to deflect such allegations. Regardless, given the impact such a decision would have on infringers, the case will be intensely debated in the months to come.

Sources: http://www.globalipmatters.com/2015/10/20/scotus-to-hear-a-duo-on-willful-patent-infringement http://www.ipwatchdog.com/2015/10/19/scotus-take-case-on-awarding-enhanced-damages-for-patent-infringement/id=62577/ http://blogs.wsj.com/law/2015/10/19/supreme-court-to-consider-patent-damages-new-electricity-case/

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