Willfulness Claim May be Based on Advanced Notice of Imminent Patent Issuance​

The court denied defendant's motion to dismiss plaintiff's claims for willful infringement and enhanced damages because plaintiff filed suit on the day its patent-in-suit issued. "In its complaint, [plaintiff] alleges several instances in which [defendant] had 'advance notice' of [the patent's] issuance. . . . Furthermore, the fact that these same parties are currently involved in litigation involving the alleged infringement of another . . . patent relating to the same application could conceivably contribute to a finding of willfulness. Taking [plaintiff's] allegations as true, the Court cannot say that it is implausible that [defendant] had knowledge of the patent at the time that the alleged infringement began and [plaintiff] filed suit. . . . Unlike a mere patent application, a Notice of Allowance, and particularly an Issue Notification, are strong indications that the patent will issue."

Malibu Boats, LLC v. MasterCraft Boat Company LLC (TV1), 3-16-cv-00082 (TNED October 28, 2016, Order) (Varlan, USDJ)