Originally Posted by Cpsro
I can smell a rat just like you can, and there's no telling what discovery will dig up, so I don't see how you can say any particular outcome is more likely than not.
Apple failed to prove it to a court despite all the discussions Apple and Samsung had well before it was decided a lawsuit was the only way to settle it. Yet you think it's a even or better chance that Rockstar, who's asserting IP that Samsung was highly unlikely to have been aware of before they may have used it in a product, will be more successful at proving willfulness? That's how I can say I believe a particular outcome is more likely than not.
Litigants attempt to claim willfullness in nearly every patent infringement case I've read. Perhaps every one of them I've seen, dunno for certain as I didn't pay that close attention. Proving it sure doesn't happen often and it's recently become harder than ever.
That's because the rules have changed First there has to be convincing proof that the infringer was using the claimed IP despite “an objectivel
y high likelihood that its actions constituted infringement of a valid patent.” That's a simple question of fact and can be decided by a jury
Then assuming that bridge gets crossed here's the part that changed and is no longer in a jury's hands. The owner of the patent has to show that subjectively
the infringer was well aware of a high risk to using that IP (that it was “either known or so obvious that it should have been known”) and their defense for using it is unreasonable. For that a judge
has to determine the defendants rationale at the time of infringement, how they arrived at their choice and what went into the decision.
So my opinion is willful infringement ain't gonna happen with any of these current Rockstar defendants. The odds are on my side that I'm right.Edited by Gatorguy - 11/14/13 at 2:59pm