Defendant’s Obnoxious Copying and Failed Design-Around Support Award of Enhanced Damages

Following a jury verdict of willful infringement, the court granted in part plaintiff's motion for enhanced damages because defendant's copying, lack of a good faith belief in noninfringement/invalidity, lack of closeness of the case, duration of misconduct, lack of remedial action, and motivation for harm favored an enhancement of $3.8 million on a $7.6 million award. "⁠[A]n attempted design around that ultimately fails to actually design around and is adjudged to be infringing necessarily copies where, as here, the adjudged infringer begins with a copy already existing technology and then proceeds to make changes. . . . [T]he record lacks any 'written evidence that anyone at [defendant] considered the full claim scope or alternative embodiments that might fall within it.'. . . [T]his case is one where the copying exhibited is 'so obnoxious as to clearly call for' 'discourage[ment] by punitive damage[s].' . . . [T]he jury awarded [plaintiff] approximately 90% of [its] proposed damages. . . . Although [defendant's] continued infringement lasted for 'only a year and eight months,' the Court must nonetheless weigh the period of time against [its] pre-suit notice and continued infringement. . . . [Defendant's] actions were preventative; they served to prevent expansion of the scope of the ongoing infringement as found at trial. . . . It is not 'good old-fashioned competition' to trespass upon other competitor’s property rights in pursuit of profits."

Whirlpool Corporation v. TST Water, LLC, 2-15-cv-01528 (TXED March 29, 2018, Order) (Gilstrap, USDJ)