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;
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