On September 16, 2012, section 298 of title 35, United States Code, regarding advice of counsel, will come into effect. This section codifies the premise asserted by the Federal Circuit in In re Seagate Technology, that the failure of an infringer to obtain the advice of counsel, or to present such advice to the court or jury, with respect to any allegedly infringed patent, may not be used to prove that the accused infringer willfully infringed the patent. In other words, courts are to exclude evidence of failure to obtain an opinion of counsel regarding infringement of an asserted patent to show willfulness. However, the provision omits any guidance for satisfying pleading requirements for willful infringement.
Willful infringement is built on the legal first principle that intentional disregard for the law justifies deterrence. "Damages have been defined to be the compensation which the law will award for an injury done, and are said to be exemplary and allowable in excess of the actual loss, where a tort is aggravated by evil motive, actual malice, deliberate violence or oppression." Scott v. Donald, 165 U.S. 58, 86 (1897). Section 284 of title 35 of the United States Code provides a basis for this principle in patent law by stating that "[u]pon finding for the claimant the court . . . may increase the damages up to three times the amount found or assessed."