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* * * EN BANC REHEARING OF ENHANCED PATENT DAMAGES QUESTION DENIED
Halo Electronics, Inc. v. Pulse Electronics, Inc. 13-1472 — Last week in a precedential order the Federal Circuit denied Halo’s petition for en banc rehearing. Halo’s patents claimed surface mount electronic packages. Halo raised a question about the enhanced damages provision of Patent Act section 284. [More]
Judge TARANTO, concurring, said that while review of Halo’s question was not warranted, many questions may warrant review in future cases because section 284 “continues to lack language prescribing substantive or procedural standards for the enhancement of damages.” Those questions include (1) “whether willfulness should remain a necessary condition for enhancement under [section] 284’s ‘may’ language”; (2) “what are the proper standards for finding willfulness?”; (3) “who makes which decisions and what standards of proof and review should govern those decisions?”; and (4) “what standards govern appellate review?”
Judge O’MALLEY in dissent argued it is time for the court to reevaluate its standard for enhanced damages in light of the Supreme Court decisions in Highmark and Octane Fitness.