Everyone is talking about this so called “treble damages”. What is it? And how do you get it?

It’s all related to so called willfull infringement.
Willful patent infringement occurs when an infringing party is aware of the existence of a patent and intentionally infringes upon it despite this knowledge. The intent to infringe may be demonstrated by showing that the infringing party knew about the patent, understood what it covered, and acted with reckless disregard for the patent holder’s rights.

In some cases, willful infringement may be proven if the infringing party was put on notice of the patent by the patent holder, but continued to infringe regardless. This notice can be in the form of a cease-and-desist letter or other communication from the patent holder.

Willful infringement can result in increased damages for the patent holder, as well as other penalties such as injunctions or treble damages (three times the amount of actual damages). However, willfulness is a high standard to prove, and the court will typically consider the infringing party’s state of mind and the facts of the case in making a determination.

Court will look if certain criteria have been fulfilled;

• Willfull infringement criteria (in short):
  • The defendant committed actions that infringed the patent and had knowledge of the infringement.(i.e the particular patent)
  • Despite this knowledge, they proceeded with their actions either feigning ignorance of the law or displaying a willful and careless disregard for the rights of the patent holder.
• In addition, the plaintiff has to show the court that the defendant conduct rises to a level of “wanton, malicious, and bad-faith” behavior

For sure we all can agree that the 879 patent is not unknown for neither Apple nor Samsung. They have seen it several times!

Question is what they have done with that information, and whom inside these companies had access to and acted upon this information.

One interesting case to look at, in this regard, is Polaroid vs. Kodak where the criteria was not met, due to timely and extensive counselling during the course of development. including patent clearance and obtaining invalidity or non-infringement opinions from counsel.
[Polaroid Corp. v. Eastman Kodak Company (1990)]

Kodak hired a law firm to perform patent clearance research. The lawyers examined more than 250 patents, both Polaroid and non-Polaroid, in the relevant field and provided written opinions on 67 patents, as well as numerous oral opinions. The attorneys analyzed hundreds of claims across all 250 patents. Despite the fact that the attorneys were mistaken about a few of the patents, Kodak avoided being found guilty of willful infringement.

Timing is also important when you test for willful infringement. Opinions (like the ones in the Kodak case) given long after the process of taking legal action has started have little value.

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Discovery will now show how Apple and Samsung treated the knowledge about the 879 patent.
There could be plenty of interesting documents and emails from these companies regarding Neonodes patents. However we have to wait and see what will be produced and used in the proceedings.