Whether courts must consider all relevant circumstances, including evidence that the defendant's position was objectively reasonable, in determining whether to enhance damages for 'egregious' infringement under §284

QUESTIONS PRESENTED In Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), this Court rejected the Federal Circuit’s misuse of “objective reasonableness” as a categorical bar to enhanced patent damages, but did not disturb the settled principle that the reasonableness of an infringer’s conduct is relevant in identifying “egregious” behavior warranting enhanced damages. Below, the District Court enhanced damages despite evidence that another Article III court had granted Corning summary judgment of non-infringement on the same claims. The District Court thus joined a growing number of courts in concluding that a finding of willful infringement suffices to support enhanced damages, regardless of the reasonableness of the defendant’s conduct. The Federal Circuit affirmed. Moreover, the jury’s willfulness finding was infected by an instruction that infringement was willful if Corning “should have known” that it likely infringed—a negligence standard that violates the “intentional or knowing” standard established in Halo. That issue is also before this Court in Bombardier Recreational Products Inc., BRP U.S. Inc., v. Arctic Cat Inc., No. 17-1645 (pet. for cert. filed June 6, 2018). The questions presented are: 1. In determining whether to enhance damages for “egregious” infringement under §284, must courts consider all relevant circumstances, including evidence that the defendant’s position was objectively reasonable? 2. Does a finding of willful infringement based on a “should have known” standard violate the requirement that willfulness be “intentional or knowing”? ii RULE 29.6 DISCLOSURE Corning Optical Communications RF LLC is a wholly owned subsidiary of Corning Oak Holding LLC, which is a wholly owned subsidiary of Corning Inc., a publicly traded company. To our knowledge, no other publicly held corporation holds 10% or more of stock in Corning Optical Communications RF LLC or Corning Oak Holding LLC.