What Happened

Normally, patent infringement damages are what it would have cost to license the patent. But if infringement is "willful"—meaning the infringer knew about the patent and deliberately infringed anyway—damages can be tripled. This is "enhanced damages," and it's meant to punish bad actors.

Why It Matters

Before 2016, enhanced damages were governed by a multi-factor test that made them somewhat predictable. Then the Supreme Court decided Halo v. Pulse and gave judges more discretion. Now courts look at whether the infringer's conduct was "egregious" or showed "willful misconduct."

What counts as willful? Copying a patented product after being told not to. Ignoring a patent you knew about. Infringing after a court already said the patent was valid. Continuing to infringe after losing at trial. These are the kinds of behaviors that trigger enhanced damages.

But there's an important defense: opinion of counsel. If you get a written opinion from a patent lawyer saying you don't infringe or the patent is invalid, that shows you acted in good faith. It doesn't guarantee you'll avoid enhanced damages, but it helps a lot.

What You Should Know

If you receive a cease-and-desist letter, take it seriously. Don't ignore it. Get competent legal advice. If you decide to continue your activities, document your reasoning and get an opinion of counsel.

If you're a patent owner, willful infringement is a powerful settlement lever. But don't overplay it—courts reserve enhanced damages for truly egregious cases.

The threat of treble damages changes behavior. That's the point.