The Fallout from Halo: Opinions of Counsel and the Evolving Standard for Willfulness

On June 13, 2016, the Supreme Court issued its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., involving the circumstances in which a court may award enhanced damages for patent infringement under 35 U.S.C. § 284.

In Halo, the Court rejected several of the Federal Circuit’s holdings in In re Seagate Technology, LLC, a 2007 decision that established a two-pronged test for an award of enhanced damages. In particular, the Supreme Court abrogated Seagate’s threshold requirement that an infringer’s conduct must be “objectively reckless” to qualify for an enhanced damages award.

After Halo, a court may consider only the defendant’s subjective intent in determining whether a defendant’s infringement was “egregious.” In light of this change, companies may perceive a need to adjust their practices in conducting patent-related diligence, including by obtaining and using written opinions of counsel.

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