Deliberate Copying of Patented Technology Leads to Doubling of Damage Award

Last Friday, chipmaker Microtune announced that “On August 12, 2003, a federal judge awarded Microtune double its compensatory damages and all of its attorney’s fees against Broadcom Corporation in Microtune’s patent infringement lawsuit against Broadcom. Microtune estimates that the total judgment against Broadcom will be between $7 and $10 million.” See also CNET news story.

Quotable quote from Microtune press release:

In issuing the order, the Court cited “the existence of a substantial amount of circumstantial evidence that Broadcom deliberately copied Microtune’s technology” in Broadcom’s BCM3415 tuner chipset. Because of the “jury’s unanimous finding by clear and convincing evidence that Broadcom’s infringement of the ‘035 patent was willful,” the Court also took the exceptional step of awarding attorney’s fees to the Company.

A doubling or even trebling of the damage award is not particularly unusual for patent-infringement cases if the judge and jury are persuaded that the defendant intentionally copied the patented technology.

In fact, a defendant can be found to be a “willful” infringer, and subject to an increased damage award, even if all it did was to go about its business after learning of the potential relevance of the patent. The way the courts have interpreted the law, once a company learns about a patent that might affect its business, it has an affirmative duty to use due care — which usually means getting advice from a patent attorney — to make sure it is not infringing. (I’ll save my editorial comment on that interpretation of the law for another day.)