District judge Joseph J. Farnan Jr. recently issued a strongly worded decision on willfulness, one that all litigators – and in-house counsel – should heed. The Court initially ordered a retrial on willfulness following the Federal Circuit’s Seagate decision. In its subsequent post-trial decision, the Court made clear its thoughts on reverse engineering:
“Faced with this failed attempt [at a design-around] and despite its knowledge of the ‘075 patent and its importance to the industry, Fairchild chose the option that presented the most objectively high risk of infringement, namely to continue the development of its product by copying, through reverse engineering, the methods and features claimed in the patent.”
The Court characterized such behavior concerning the ‘075 patent and the other patents-in-suit as “industrial stalking” and “blatant copying.” The result, even with evidence of post-litigation opinions of counsel, was a textbook willfulness finding.
Delaware IP Law Blog 