Supreme Court To Continue Undoing Rigid Tests In Patent Cases?

On October 19, 2015, the Supreme Court granted certiorari in two cases, Stryker Corp. v. Zimmer, U.S., No. 14-1520, and Halo Electronics, Inc. v. Pulse Electronics, Inc., U.S., No. 14-1513, on the sole issue of whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284. The test the Federal Circuit applied in Stryker and Halo Electronics is very similar to the rigid, two-part test the Court rejected in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 572 US __ (2014) for imposing attorney fees under the similarly-worded 35 U.S.C. § 285. The decisions in these cases, coupled with Octane Fitness, could alter patent litigation strategies.

The relevant text of the statute at issue here, 35 U.S.C. § 284, reads: "[i]n either event the court may increase the damages up to three times the amount found or assessed." As a comparison, the text 35 U.S.C. § 285 reads: "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party." As we discussed in our client alert " Supreme Court Makes Landmark Rulings on Attorney Fees in Patent Cases," the Federal Circuit had previously held in Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393...