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IP Law360: Delgado Reviews Federal Circuit’s Effort to Toughen Willful Infringement Standard


DALLAS, October 21, 2009 -- In a recent IP Law360 article, Baker Botts lawyer Patricio Delgado reviewed the Federal Circuit’s recent decisions to toughen the standard for proving willful infringement. Little attention has been given to an unexpected yet significant result arising from the new In re Seagate standard, Delgado pointed out in his article.

“Now that an objectively reasonable argument of noninfringement can preclude a finding of willful infringement, a defendant may avoid willful infringement by relying on the reasonableness of the claim construction positions that it proffered in an effort to establish noninfringement,” he wrote.

This possibility raises significant questions such as:
• Should courts treat those willfulness determinations as questions of law?
• What principled analytical approach should courts use to determine the reasonableness of an ultimately incorrect proposed claim construction?
• When should defendants request and courts make those determinations of willfulness?

To read Delgado’s article, please click here.

To access additional Law360 articles, please click here.

About Baker Botts L.L.P.
Baker Botts L.L.P., dating from 1840, is a leading international law firm with offices in Abu Dhabi, Austin, Beijing, Dallas, Dubai, Hong Kong, Houston, London, Moscow, New York, Palo Alto (California), Riyadh and Washington. With approximately 750 lawyers, Baker Botts provides a full range of legal services to international, national and regional clients. For more information, please visit

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