Justices Urged To Settle Divide Over Enhanced Patent Damages Test

NetScout Systems Inc. has asked the U.S. Supreme Court to revisit the test for awarding enhanced damages in patent cases, saying the Federal Circuit has “steadfastly refused” to clarify a key question.

Patent law allows judges to increase damages up to three times the initial award when infringement is willful. NetScout said there is confusion about whether willfulness requires pre-suit misconduct, or whether it can be based entirely on conduct that occurs after a complaint is filed.

“This unsettled issue has resulted in conflicting court opinions and uncertainty for plaintiffs and defendants alike,” NetScout wrote in a petition docketed Wednesday. ...