In Seagate, the CAFC raised the burden of proof for enhanced damages — Enhanced damages are now only available for willful patent infringement that is at least “objectively reckless.” And, as a consequence, “there is no affirmative obligation to obtain opinion of consel” to avoid a willfulness charge. This essentially moves potential treble damages from a negligence standard of due care to a more stringent standard. (See pair of graphs below).
The question now on the minds of many patent attorneys: What role, if any, is there for the thick, formal opinions explaining in detail why a particular patent is invalid, unenforceable, and/or not infringed?
