The "willful" infringement of a patent
enables the plaintiff to collect treble damages, as
well as attorneys' fees. The burden is on the patent
holder to prove under the totality of the
circumstances that an accused infringer acted
willfully. Whether the accused infringer obtained a
competent opinion of counsel is now simply one
factor to consider in this analysis. Other factors
include:
• Whether they deliberately copied the
ideas or design of another (ideas and design would
encompass, for example, copying the commercial
embodiment);
• Their behavior as a party to the
litigation;
• The defendant's size and financial condition.
• The closeness of the case;
• The duration of the defendant's misconduct;
• Remedial action taken by the defendant;
• The defendant's motivation for harm;
• Whether the defendant attempted to conceal its
misconduct;
