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Willful Infringement:

In this case, TPL argues that HTC willfully infringed TPL’s patent.

To prove willful infringement, TPL must first persuade you that HTC infringed a valid claim of TPL’s patent. The requirements for proving such infringement were discussed in my prior instructions. In addition, to prove willful infringement, TPL must persuade you that it is highly probable that prior to the filing of the complaint on February 8, 2008, HTC acted with recklessdisregard of the claims of TPL’s patent.

To demonstrate such “reckless disregard,” TPL must satisfy a two-part test. The first part of the test is objective. TPL must persuade you that HTC acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. The state of mind of HTC is not relevant to this inquiry. Rather, the appropriate inquiry is whether the defenses put forth by HTC fail to raise any substantial question with regard to infringement or validity. Only if you conclude that the defenses fail to raise any substantial question with regard to infringement or validity, do you need to consider the second part of the test.

The second part of the test does depend on the state of mind of HTC. TPL must persuade you that HTC actually knew, or it was so obvious that HTC should have known, that its actions constituted infringement of a valid patent.

In deciding whether HTC acted with reckless disregard for TPL’s patent, you should consider all of the facts surrounding the alleged infringement including, but not limited to, the following factors.

(1) Whether HTC acted in a manner consistent with the standards of commerce for its

industry;

(2) Whether HTC intentionally copied a product of TPL covered by the patent;

(3) Whether or not HTC made a good-faith effort to avoid infringe the ‘581 patent, for

example, whether HTC attempted to design around the ‘581 patent;

(4) Whether or not HTC tried to cover up its infringement;

(5) Whether or not there is a reasonable basis to believe that HTC did not infringe or had a reasonable defense to infringement.