Defense Formulated After Infringing Activity May Be Reasonable

The court granted defendant's motion for summary judgment that it did not willfully infringe plaintiff's multimedia display patents. "If a defense, which was ultimately rejected by the jury, can nevertheless be considered reasonable due to the intensely factual inquiry involved in ruling on the defense, then [defendant's] defense, which has been granted in part at the summary judgment stage, must be reasonable. . . . Furthermore, despite [plaintiff's] assertions to the contrary, an alleged infringer is not required to show contemplation of defenses to a potential infringement action before pursuit of the allegedly infringing activities . . . Requiring that, in order to have a 'reasonable' defense, a potential infringer formulate the defense before taking any action that might potentially infringe the patent, would essentially impose an affirmative obligation to obtain the opinion of counsel -- a proposition rejected by the Federal Circuit's opinion in [In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007)]."

Virginia Innovation Sciences, Inc. v. Samsung Electronics Co., Ltd., et. al., 2-12-cv-00548 (VAED January 8, 2014, Order) (Davis, J.)