By Robert H. Resis of Banner & Witcoff, Ltd.
Robert Resis has over 20 years of experience in representing clients in a wide variety of intellectual property matters. His primary concentration is in trial work. Mr. Resis practices in the Chicago office of Banner & Witcoff, Ltd., where he has spent his entire legal career.
The en banc decision of the Federal Circuit Court of Appeals in In re Seagate Technology, LLC, (Fed. Cir., August 20, 2007), overrules the Court's long time standard for evaluating willful infringement as set forth in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389-90 (Fed. Cir. 1983). In Underwater Devices, the Federal Circuit held that where “a potential infringer has actual notice of another's patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing” and that such “an affirmative duty includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity.”
In Seagate, the Federal Circuit held that “proof of willful infringement permitting enhanced damages requires at least a showing of objective recklessness [and not a negligence threshold associated with the duty of care announced in Underwater Devices].”&nb...
