The opinion of the court was delivered by: Donetta W. Ambrose United States District Judge
MEMORANDUM ORDER OF COURT
Plaintiffs have filed a Motion for an Award of Enhanced Damages and Attorneys' Fees. (Docket No. ). The Motion is based on "the jury's finding of willful infringement as well as the conduct of Defendant Optium Corporation ("Optium") that unreasonably prolonged this litigation...." (Docket No. 280, p. 1). I will address the issues of enhanced damages and attorneys' fees separately.
In patent cases, a district "court may increase the damages up to three times the amount found or assessed." 35 U.S.C. §284. Enhanced damages are punitive in nature meant to penalize a willful infringer for its increased culpability. Mass Engineered Design, Inc. v. Ergotron, Inc., 633 F.Supp.2d 361, 390 (E.D. Tex. 2009). Plaintiffs request that I enhance the damages "by a factor at least approaching the full treble damages authorized by 35 U.S.C. §284." (Docket No. 280, p. 8).
An award of enhanced damages for infringement, as well as the extent of the enhancement, is committed to the discretion of the trial court. While no statutory standard dictates the circumstances under which the district court may exercise its discretion, this court has approved such awards where the infringer acted in wanton disregard of the patentee's patent rights, that is, where the infringement is willful.
On the other hand, a finding of willful infringement does not mandate that damages be enhanced, much less mandate treble damages.
The paramount determination in deciding to grant enhancement and the amount thereof is the egregiousness of the defendant's conduct based on all the facts and circumstances. The court must consider factors that render defendant's conduct more culpable, as well as factors that are mitigating or ameliorating.
Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992), abrogated in part on other grounds by Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir.1995) (en banc) (citations omitted). Thus, " while willful infringement may allow enhanced damages, such a finding does not compel the district court to grant them. Instead, the decision to grant or deny enhanced damages remains firmly within the scope of the district court's reasoned discretion, informed by the totality of the circumstances." Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1274 (Fed. Cir. 1999) (citations omitted).
The Federal Circuit has found nine factors to consider in determining whether to enhance damages. Id. at 826-828.
(1) Whether the infringer deliberately copied the ideas or design of another;
(2) Whether the infringer, when he knew of the other's patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed;
(3) The infringer's behavior as a party to ...