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Washington Journal of Law, Technology & Arts

Abstract

Patent law’s “willful infringement” analysis under 35 U.S.C. § 284 and the “exceptional case” analysis under 35 U.S.C. § 285 are largely considered parallel, and essentially identical. In 2014, the Supreme Court of the United States drastically changed the standards for the § 285 exceptional case analysis in its Octane Fitness, LLC v. ICON Health & Fitness, Inc. and Highmark Inc. v. Allcare Health Management System, Inc. decisions. This prompted two federal circuit judges to call for similar changes to the § 284 willful infringement analysis. On October 19, 2015, the Supreme Court granted certiorari to review whether such a change is warranted. This Article examines the legal and policy arguments on both sides and concludes that, while a drastic change of the substantive standard of the willful infringement analysis is unlikely, a change of the standard of review is possible. Consequently, the parallel between § 284 willfulness and § 285 exceptional case analysis will likely come to an end.

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