As I often repeat, I am not an attorney, much less a Patent Attorney, but I have learned alot about legal process and such through the drama of the "PTSC experience".

Having said that, IMO folks are getting a bit carried away with the thought of possible treble damages (which only can come at the conclusion of litigation). Folks seem to be suggesting that "since the infringer knew they were infringing, such known infringement automatically allows treble damages".

Think process.... As I advised in a very recent post here, the accused infringer is only legally liable for infringement by specified products starting from the date they received legal notice from the patent owner or assignee. This kicks off the entire process from the infringer's perspective. So each and every infringer that has been placed on legal notice KNOWS that they are, at minimum, accused of infringement (with data supporting the claim) by the patent owner. Thus, from that moment, it could be argued that they knowingly infringed. When they respond with a "no we don't" is when a dispute arises and legal action is (may be) pursued. I suggest this in very simplistic terms to get the point across.

This in mind, how often are treble damages awarded (ultimately decided by the Judge, I believe)? If it worked as some suggest, it would seem that the defendant would get nailed with treble damages in every case where infringement has been proven in court. They don't. My understanding is that treble damages are rarely awarded.

So more thought and research is needed to figure the possibilities. Bottom line IMO is that there must be a "higher bar" that must be achieved to enable a treble damages award. I suspect that the proven infringement must have been "extraordinarily blatant". At what point is that line crossed? When the defendant offered no significant defense at trial?

A more-to-the-point bottom line - an award of treble damages is not a "given".

FWIW,

SGE