Seaman on Willful Patent Infringement

What effect has In re Seagate had on willful infringement findings? Seagate raised the bar for willfulness by requiring patentees to show "objective recklessness." Christopher Seaman (Chicago-Kent Law) addresses this question in Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study (forthcoming in the Iowa Law Review). Seaman created a dataset of all patent willfulness cases from September 2004 to July 2010 (straddling the Seagate decision in August 2007); the paper says that data "will be made publicly available on the author's website," but they don't appear to be posted yet.

Although "[m]any observers predicted that [Seagate's] heightened standard would result in far fewer willfulness findings and enhanced damage awards," Seaman's empirical study "finds that willful infringement was found only about 10% less often after Seagate." For a concise summary of the specific findings, see Peter Zura's post on his 271 Patent Blog. Of course, with studies of this sort it is always difficult to separate the effect of the new legal rule from the decisions of the parties over which cases to litigate, so it is hard to know what conclusions we can draw, but I think Seaman's findings are still useful.