NetScout Systems, Inc., et al. v. Packet Intelligence LLC

This case presents unresolved issues regarding proof of willfulness, an allegation that arises regularly in patent litigation, and the standard for determining when technological subject matter is eligible for patent protection, another recurring issue. These issues are critically important for technology companies across the United States, like NetScout, which lead their industries by offering innovative new products but face uncertainty in how to respond properly to patent infringement claims. The patent laws provide that courts “may increase the damages up to three times the amount found or assessed.” 35 U.S.C. § 284. This Court has held that these enhanced damages are available as a “‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016). “[E]gregious infringement behavior” is often referred to as “willful infringement” or “willfulness.” Ibid. With respect to willful infringement, the questions presented are:

1. Whether a finding of willful infringement justifying treble damages may be based solely on the defendant’s conduct following the filing of the suit.

2. If the defendant’s post-filing conduct can provide a basis for willful infringement, whether such a finding is adequately supported by evidence