October 20, 2019

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Ostriches Beware: Hiding Head in the Sand Causes Willful Blindness in Patent Infringement

It is often said that “ignorance of the law is no excuse.” The same basic principal applies to patent infringement—as a defendant in a Texas patent case recently discovered, much to its chagrin. The US District for the Eastern Court of Texas has ruled that having a policy of ignoring other companies’ patents is sufficient grounds to support claims of willful patent infringement. Such claims can lead to treble damages and attorneys’ fees being awarded against the party found to have willfully infringed the patents.

The patent dispute (Motiva Patents, LLC v. HTC Corporation) involves two makers of virtual reality hardware. Motiva Patents LLC claimed that HTC Corp.’s Vive virtual reality system willfully infringed upon five of its patents related to a system controller that users employ to engage in virtual reality activities.

HTC officials, however, argued they couldn’t have willfully infringed upon Motiva’s patents because they knew nothing of that technology. In fact, they said HTC had a policy of deliberately not reviewing other companies’ patents—and employees were instructed not to do so, according to court documents.

But rather than protect the company, the Eastern District Court found this policy opened the door for support of Motiva’s assertions that HTC willfully infringed upon Motiva’s patents. The court stated that intentionally being blind to the facts was essentially the same as knowing about a competitor’s patent and infringing on it anyway.

The lesson for other companies is plain and simple —not only is a policy of intentionally ignoring competitors’ patents an inadequate defense, it actually can make defendants more vulnerable to willful patent infringement findings. Just as the head-in-the-sand defense isn’t much help to an ostrich in imminent danger, it can be a risky strategy for any company that desires to avoid being on the losing end of a willful patent infringement suit.

In addition, companies should take steps to understand the lay of the patent landscape in the field where they introduce and sell products. Such prudent preventative steps can help to reduce the costly risks of willful patent infringement.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Kristin Lamb, Associate, Houston, WBD, IP Law, Patent Law
Associate

Large companies, startups, universities, and solo inventors look to Kristin Lamb to assist in establishing, defending, and monetizing valuable intellectual property. 

Kristin focuses on assisting clients in protecting their intellectual property rights in the areas of patents, trademarks, and copyrights, advising on strategies for pursuing protection, filing domestic and foreign applications, and prosecuting applications to allowance. In addition, Kristin guides clients in intellectual property litigation, as well as IP licensing. 

Kristin is well-versed in a variety of...

346.998.7843
Mark Shelly, Of Counsel, Houston, WBD, IP Law, Patent Law
Of Counsel

Leveraging his broad technical and legal background, Dr. Mark Shelley assists clients in identifying and strategically protecting their intellectual property and technology-based assets, with particular emphasis on energy-related transactions and the prosecution and litigation of patents and trademarks.

Mark's practice also includes work in M&A transactions amongst technology-focused companies, drafting complex agreements, preparing patentability, non-infringement and freedom to operate opinions, and counseling clients with respect to a wide range of intellectual property issues, including trade secrets and copyrights.

During his wide-ranging practice, Mark has also drafted and prosecuted domestic and foreign patent applications, conducted post-grant proceedings, assisted clients in both enforcing patent rights and defending against claims of patent infringement through litigation, and drafted agreements, performed due diligence and advised of risks relating to asset purchases.

Formerly, Mark served as in-house counsel to a major international oil and gas services company and managed the intellectual property assets of several of its large divisions. In that role, he also drafted all manner of agreements, conducted due diligence for the acquisition of drilling technologies, supported several litigation matters, and counseled his client regarding intellectual property issues in the oil and gas sector. 

A chemical engineer by education, training, and professional licensure, Mark has advised clients in diverse markets, including oil and gas exploration/production, industrial and agricultural chemicals, medical devices, alternative energy processes, and consumer goods.  As a licensed professional engineer in Texas, Mark has significant engineering work experience in refineries, chemical plants, and pulp/paper mills.

346.998.7816
Jeffrey S. Whittle Partner Womble Houston Corporate Law, IP Law, Patent Law,
Partner

Jeffrey Whittle provides over two decades of legal experience to clients in the energy and high tech industries. He advises on strategic and complex technology transactions, licensing, patent protection, portfolio analysis, and other contentious and transactional intellectual property matters including inter partes reexaminations, post-grant reviews, and derivation proceedings, among other disputed cases. Jeffrey leads Womble Bond Dickinson’s International IP Energy Group and serves as Managing Partner of the firm’s Houston office.

Jeffrey has been recognized by Chambers USA in the...

346.998.7859