It's funny—for all the massive amounts of time spent litigating willfulness in patent cases, and the big evidentiary impact it can have, we don't get opinions addressing whether the Court will actually enhance damages all that often.
Yesterday, Judge Andrews issued a post-trial opinion addressing enhancement of damages after a willfulness finding. He applied the well-known Read factors to determine whether to enhance damages, noting that they are still persuasive even though they are no longer required after the Supreme Court's more recent Halo opinion.
Here's how the factors panned out, including whether they weighed in favor of or against enhancement of damages
- No copying by the defendant, weighs against
- Willfulness verdict, weighs in favor
- No bad behavior in litigation, weighs against
- Large defendant, weighs in favor
- Close case, weighs against
- 40 months of willful infringement, weighs in favor
- No remedial action by the defendant, but it had good faith defenses, neutral
- No motivation to harm plaintiff, weighs against
- No attempt to conceal infringement, weighs against
Acceleration Bay LLC v. Amazon Web Services, Inc., C.A. No. 22-904-RGA (D. Del. Mar. 26, 2026).
All told, three factors weighed in favor of enhancement, five weighed against, and one was neutral. Judge Andrews declined to enhance damages.
Willfulness Law Is Weird
Patent litigators know, in the abstract, that a willfulness verdict is not the same thing as receiving enhanced damages. But it's still kind of amazing to see how, in practice, the parties in a patent case can spend so much time and effort litigating a "willfulness" verdict that may ultimately impact just one of nine factors the Court considers in enhancing damages.
It's entirely possible to win a willfulness verdict at trial and for the Court to award no enhanced damages at all, rather than the the treble damages that are often assumed. This also shows the importance of a strong case on the other Read factors, like copying, remedial action, motivation to harm, and attempts to conceal.
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