Plaintiffs allege they had no reason to believe Defendant even knew of the ‘437 Patent at the time the initial Complaint was filed and thus, they lacked a good faith basis upon which to claim willful infringement. The Court agrees. The Court finds before the Reexamination Certificate issued, allegations that Defendant’s actions were deliberate or reckless would not have provided sufficient factual or legal grounds because the validity of the ‘437 Patent remained questionable. However, once the USPTO had made its final decision, Defendant’s continued use of the ‘437 Patent could reasonably be considered “objectively reckless.” Therefore, it is only since the USPTO’s certification that Plaintiffs could in good faith consider bringing a claim of willful infringement. Additionally, the Court finds although the Reexamination Certificate was issued almost eight months before Plaintiffs sought leave to amend, there has been no undue delay because this case was only reopened on December 18, 2008, approximately one month before the instant Motion was filed. As such, the Court will not deny Plaintiffs’ proposed addition of a claim for willful infringement on the grounds of undue delay.
http://271patent.blogspot.com/2009/03/defendants-knowledge-of-reexamination.html
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How long before the floodgates open?
Once alleged infringement can be proved, by virtue of the recertification, it becomes willful, in my very humble opinion.
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Triple damages, anyone?
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Be well
