Willfulness. For the most part, Plaintiff alleges willfulness on no basis other than the fact that an earlier version
the suit was served on a defendant before the present amended complaint was filed. While I previously had allowed such a pleading,
see Ip Venture
2013 WL 126726 (D.Del. Jan. 8, 2013), I have
that decision. Other judges
this Court have split on this issue.
See e.g. Execware
6138340, at *7 (D.Del. Dec. 10, 2012) (Magistrate Judge Fallon)( dismissing willfulness allegation);
893 F.Supp.2d 680, 685 (D.Del. 2012) (Judge Robinson) (same);
Amazon. com Inc.
2013 WL 2293452, at *4-5 (D.Del. May 24, 2013) (Judge Stark) (allowing willfulness allegation). Judge Stark stated that there was not much difference conceptually between sending a letter pre-suit and the filing
a complaint to put an alleged infringer on notice, and I agree with the logic
that statement. The pre-suit letter does, however, offer a benefit -the patent holder and the asserted infringer may exchange information, and the asserted infringer might then take a license, or the patent holder might learn
reasons why suit should not be filed. There is a benefit to society
the matter is resolved without a suit. Once a suit is filed, however, the only thing a willfulness allegation in an amended complaint does is allow the Plaintiff to raise the stakes. Given what the Federal Circuit has said about an injunction generally being the preferred remedy for post-filing reckless conduct, and recognizing that some
may not be able to seek an injunction, it seems to me the better course is generally not to allow allegations
willfulness based solely on conduct post-dating the filing
the original complaint.
The Federal Circuit has indicated that willfulness is generally something that either does, or does not, happen before litigation begins. [I]n ordinary circumstances, willfulness will depend on an infringer's prelitigation conduct. [W]hen an accused infringer's post-filing conduct is reckless, a patentee can move for a preliminary injunction, which generally provides an adequate remedy for
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