Willful Infringement (Sec. 5)
- An alleged infringer receives a notice that provides a "reasonable apprehension of Suit." Such notice must identify the specific patent claims and the product or process which is infringing – a more rigorous requirement than in current law;
- A party intentionally copies; or
- a party is found to have infringed and then infringes the same patent again.
The language precludes a determination of willfulness during the period when the infringer had an "informed good faith belief" that the patent was invalid, unenforceable, or not infringed.
The PIA Viewpoint
Patent holders currently sue for and collect damages because of "willful infringement." This doctrine is needed to discourage corporations from trespassing on the intellectual property rights of others, especially small businesses. The provision will devalue patents by allowing willful infringers to pay considerably less in monetary damages, effectively allowing large companies to buy – through monetary damages – the right to trespass on patents of small businesses.
This change in patent law is designed specifically to make it easier of an infringer to bankrupt a patent owner with a declaratory judgment action. It will lead to more litigation, not less but the bill collectively will put the patent owner at a greater disadvantage then is currently the case.
So called "informed good faith belief" is commonly abused to cover intentional infringement.