United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
This is a patent infringement case brought by Plaintiff Carnegie Mellon University ("CMU"), against Defendants Marvell Technology Group, Ltd. and Marvell Semiconductor, Inc. (collectively "Marvell"), alleging that Marvell has infringed two of its patents, U.S. Patent Nos. 6, 201, 839 (the "839 Patent") and 6, 438, 180 (the "180 Patent") (collectively, the "CMU Patents"), for which the Court conducted a four-week jury trial from November to December of 2012. (Docket No. 760). The jury rendered its verdict on December 26, 2012 in favor of CMU on infringement, validity and willfulness, and awarded damages in the amount of $1, 169, 140, 271.00. (Docket No. 762). The Court has continued to preside over hotly contested post-trial proceedings in this case, which has included extensive briefing and post-trial evidentiary submissions, a two-day motion hearing, supplemental briefing on disputed legal points and periodic joint status reports from the parties as to Marvell's continuing sales of the infringing technology. The Court has moved sequentially through the post-trial motions and issued a number of decisions, including: (1) denying Marvell's motion for a mistrial, (Docket No. 900); (2) resolving the parties' challenges to the sufficiency of the evidence supporting the jury's verdict on liability, damages and willfulness but reserving ruling on the financial penalty to be imposed as a result of Marvell's willful infringement, (Docket No. 901); and (3) denying Marvell's equitable defense of laches, which could have substantially reduced the jury's award, (Docket No. 920). All of those decisions are incorporated by reference herein. (Docket Nos. 900, 901, 920).
At this juncture, the jury's verdict of $1, 169, 140, 271.00, which has been adopted as a judgment filed on January 14, 2013, has been sustained. (Docket Nos. 762, 769, 901). The jury's verdict represents one hundred percent (100%) of the compensatory damages sought by CMU at trial for Marvell's infringement of the patented methods. ( Id. ). It also signifies that the jury wholly adopted the testimony of CMU's damages expert, Catharine Lawton, who opined that a hypothetical negotiation between the parties would have resulted in a reasonable royalty of $0.50 per Accused Chip sold by Marvell during the relevant time period (the royalty base) and would result in the exact damages figure which was awarded by the jury. (Docket No. 686 at 61). Ms. Lawton's opinions have been heavily scrutinized by the Court in prior decisions (including Daubert challenges both before and during trial) and the decisions on those issues are likewise incorporated by reference herein. (Docket Nos. 451, 713, 901). Relevant here, Ms. Lawton's testified to the following damages computations:
(Docket No. 633-1 at 7). While the post-trial motions were pending, the Court ordered a number of post-trial accountings regarding Marvell's continuing sales of Accused Chips and the parties filed status reports providing such information. (Docket Nos. 885, 886, 904). Through this process, the parties met and conferred and generally agreed that Marvell has made the following sales of Accused Chips in the subsequent periods:
(Docket Nos. 889, 907, 901 at n.136). The Court has not ordered additional status reports at this time because the same are unnecessary to the Court's present decisions. However, updated accountings will be ordered in conjunction with the Court's rulings set forth below.
Turning back to the pending matters before the Court, all of the remaining post-trial motions involve CMU's efforts to seek to increase this substantial award and/or to seek a reasonable royalty for ongoing infringement by Marvell or enjoin it from same. CMU seeks all of the following in addition to its billion dollar jury verdict:
supplemental damages of $79, 550, 288;
prejudgment interest of up to $326, 144, 393.25;
enhanced damages of up to three times the jury's verdict and supplemental damages (i.e., for a total verdict of $3, 746, 071, 677);
0.14% post-judgment interest on the jury's verdict, and any supplemental damages, attorneys' fees (the issue of attorneys' fees has been deferred by the Court until any appeals are resolved), and/or prejudgment interest which may be awarded, compounded annually;
a permanent injunction preventing Marvell from further production of any products which infringe CMU's patented methods because Marvell is allegedly a "collection risk, " and,
an on-going running royalty of up to $1.50 per chip on all of Marvell's post-judgment sales of chips containing the infringing technology.
(Docket Nos. 786, 788, 790). Marvell essentially concedes that an award of supplemental damages and post-judgment interest are appropriate in light of the jury's verdict but opposes CMU's requests for prejudgment interest, enhanced damages, a permanent injunction and/or a reasonable royalty on future sales of the Accused Chips. (Docket Nos. 824, 828, 833, 861-863).
CMU's requests are framed as its Motion for Prejudgment and Post-Judgment Interest, (Docket No. 788), Motion for a Permanent Injunction, Post-Judgment Royalties, and Supplemental Damages, (Docket No. 786), and Motion for a Finding of Willful Infringement and Enhanced Damages,  (Docket No. 790). These matters have been completely briefed, (Docket Nos. 787; 789; 790; 793; 834; 836; 837; 850; 852; 853; 861; 862; 863), and the Court heard argument on same on May 1 and May 2, 2013. (Docket No. 873). The transcripts of these proceedings were filed on May 15, 2013. (Docket Nos. 880; 881). The parties have also submitted status reports and supplemental briefing on certain issues. (Docket No. 889, 891, 893, 896, 897, 898, 905, 906). Accordingly, these motions are now ripe for disposition. Upon careful consideration of all of the parties' submissions, oral argument, and for the following reasons, CMU's Motions ,  and  are granted, in part, and denied, in part. More specifically,
CMU's Motion for Prejudgment and Post-Judgment Interest  is granted to the extent that CMU seeks post-judgment interest under 18 U.S.C. § 1961 but denied to the extent that CMU seeks prejudgment interest under 35 U.S.C. § 284;
CMU's Motion for a Permanent Injunction, Post-Judgment Royalties, and Supplemental Damages  is granted to the extent that CMU will be awarded supplemental damages in the amount of $79, 550, 288.00; denied to the extent that a permanent injunction is sought; and granted, in part, as the Court will order an on-going royalty of $0.50 per sale of Accused Chips by Marvell; and,
CMU's Motion for a Finding of Willful Infringement and Enhanced Damages  is granted to the extent that the Court will award enhanced damages at a rate of 1.23 multiplied by the jury's award and supplemental damages, for a total enhancement of $287, 198, 828.60, but denied to the extent that CMU seeks enhanced damages at a higher rate.
II. MOTIONS SEEKING RELIEF UNDER 35 U.S.C. § 284
CMU's post-trial motions for supplemental damages, prejudgment interest and enhanced damages seek relief under the patent damages statute, 35 U.S.C. § 284, which provides that:
[u]pon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed....
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.
35 U.S.C. § 284. The decisions as to whether to award supplemental damages, prejudgment interest and enhanced damages are respectively committed to the sound discretion of the trial court, in light of the developing precedent of the Supreme Court and Federal Circuit on these issues. "Although courts have broad discretion in determining appropriate relief for patent infringement... damages must be tailored to the circumstances and be correlatively determined.'" Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1212-13 (Fed. Cir. 2010) (quoting Carborundum Co. v. Molten Metal Equip. Innovations, Inc., 72 F.3d 872, 881 (Fed. Cir. 1995)). The Court will address these matters sequentially, starting with supplemental damages.
A. Supplemental Damages
CMU's request for supplemental damages for all infringing sales of Accused Chips that were not included in the jury's verdict and accrued until the judgment was entered on January 14, 2013 is rather uncontroversial. (Docket No. 787 at 19; Docket No. 837 at 26). The parties agree that the jury's verdict of $1, 169, 140, 271.00 included damages sustained by CMU during the period of March 3, 2006 through July 29, 2012, a period which did not include the full damages period which ended as of January 14, 2013. ( Id. ). The parties have likewise stipulated that the accrued supplemental damages for this additional period (i.e., from July 29, 2012 to January 14, 2013) is $79, 550, 288.00. (Docket No. 889 at 3). Such figure was calculated by multiplying the reasonable royalty found by the jury of $0.50 per chip times the royalty base of 159, 100, 576 Accused Chips which Marvell sold during the supplemental damages period. ( Id. at 3).
It is well settled that a prevailing patentee is due the damages for uncalculated pre-verdict sales through the date of the entry of judgment. See Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc., 711 F.3d 1348, 1380-81 (Fed. Cir. 2013); see also Finjan, 626 F.3d at 1213. The Court finds that supplemental damages are properly awarded to CMU for the period of July 29, 2012 through January 14, 2013 because the jury did not have the opportunity to assess them due to a lack of financial information regarding Marvell's ongoing sales of Accused Chips at the time of trial. See 35 U.S.C. § 284 ("When the damages are not found by a jury, the court shall assess them."). Further, the parties' stipulations are consistent with the jury's verdict, which awarded $0.50 per all of Marvell's infringing sales of Accused Chips, during the relevant period. Id. Accordingly, CMU's Motion  is granted to the extent that it seeks supplemental damages and CMU is awarded supplemental damages of $79, 550, 288.00. The Court will analyze CMU's companion requests for an ongoing royalty and periodic accountings resulting from Marvell's continuing post-judgment infringement in section IV.B., infra. 
B. Prejudgment Interest
The Court next addresses CMU's motion for prejudgment interest, which remains hotly contested by Marvell. (Docket Nos. 788-89, 824, 852, 861). CMU has set forth three separate proposals in support of its request for an award of prejudgment interest on the entirety of the jury's verdict and supplemental damages by applying either: (1) the Pennsylvania state statutory rate of 6%, compounded quarterly, resulting in $326, 144, 393.25; (2) the rate of its investment returns, compounded quarterly, resulting in $285, 054, 096.75; or, (3) the prime rate, compounded quarterly, resulting in $211, 538, 112.38. (Docket Nos. 788; 898). Marvell contends that prejudgment interest should be denied in its entirety, or limited through the application of a lower interest rate or by compounding the figures annually rather than quarterly. (Docket Nos. 824, 861).
In large measure, the parties have set forth positions akin to those advocated in the context of Marvell's assertion of the defense of laches, with CMU touting that prejudgment interest is necessary to make it whole and provide compensation for its lost opportunity to invest the reasonable royalties it is owed and Marvell countering that CMU's delays in bringing this case caused it prejudice, undermining the request for prejudgment interest. (Docket Nos. 788-89, 824, 852, 861). As noted, the Court denied Marvell's motion for judgment on laches in a lengthy decision dated January 14, 2014. (Docket No. 920). There, the Court found that Marvell met its burden to demonstrate by a preponderance of the evidence both that: (1) CMU's delays in prosecuting this lawsuit were unreasonable and inexcusable; and (2) Marvell was prejudiced, in part, by the delays, because CMU did not take reasonable steps to preserve the full quantum of potential evidence during the laches period. ( Id. ). However, the Court denied Marvell's laches defense after weighing the equities between the parties, finding that Marvell's willful infringement outweighed CMU's negligence in failing to reasonably protect its patent rights through enforcement activities against Marvell. ( Id. ). The ultimate effect of this decision was to sustain the jury's award of approximately $545 million in pre-suit damages for the period of March 6, 2003 through the date the lawsuit was filed March 6, 2009. ( Id. ).
The Court recognizes that the issue of prejudgment interest is analytically distinct from its earlier laches inquiry; however, the Court views the parties' arguments as to the appropriateness of an award of prejudgment interest through the prism of its analysis and factual findings on the laches defense and with due consideration of the financial impact of that decision. (Docket No. 920). The Court likewise understands that its prior rejection of the laches defense, on equitable grounds, is not dispositive on the issue of prejudgment interest. See e.g., Enzo Biochem, Inc. v. Applera Corp., Civ. A. No. 3:04-cv-929, 2014 WL 29126, at *2 (D. Conn. Jan. 3, 2014); Humanscale Corp. v. CompX Int'l Inc., Civ. A. No. 09-cv-86, 2010 WL 3397455, at *2 (E.D. Va. Aug. 23, 2010); Church & Dwight Co., Inc. v. Abbott Labs., No. 05-2142(GEB)(LHG), 2009 WL 2230941, at *7 (D.N.J. 2009).
With that said, the parties do not dispute that the award of prejudgment interest under section 284, including the rate of prejudgment interest to be applied and whether to compound any prejudgment interest awarded, are discretionary matters for the Court. See Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed. Cir. 1991) (internal citations omitted) ("[a] trial court is afforded wide latitude in the selection of interest rates, and may award interest at or above the prime rate."). The Supreme Court has held that an award of prejudgment interest is ordinarily appropriate in patent cases, reasoning that:
[i]n the typical case an award of prejudgment interest is necessary to ensure that the patent owner is placed in as good a position as he would have been in had the infringer entered into a reasonable royalty agreement. An award of interest from the time that the royalty payments would have been received merely serves to make the patent owner whole, since his damages consist not only of the value of the royalty payments but also of the foregone use of the money between the time of infringement and the date of the judgment.
Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56 (1983). Despite its pronouncement that prejudgment interest is generally appropriate, the Supreme Court clarified that district courts retain discretion to limit or deny prejudgment interest in certain circumstances, such as where the patentee has been responsible for undue delays in prosecuting the lawsuit. Gen. Motors, 461 U.S. at 657. Yet, the Federal Circuit has emphasized that "absent prejudice to the defendants, any delay by [the patentee] does not support the denial of prejudgment interest." Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l, Inc., 246 F.3d 1336, 1361-62 (Fed. Cir. 2001) (internal citations omitted). Because the award of prejudgment interest is not unique to patent law, it is determined under the law of the regional circuit, prompting this Court to also look to precedent from the Court of Appeals for the Third Circuit in deciding these issues. Transmatic, Inc. v. Gulton Indus., Inc., 180 F.3d 1343, 1347 (Fed. Cir. 1999). The Third Circuit advises that a district court should consider and balance the following factors before exercising its discretion to award prejudgment interest:
(1) whether the claimant has been less than diligent in prosecuting the action;
(2) whether the defendant has been unjustly enriched;
(3) whether an award would be compensatory; and,
(4) whether countervailing equitable considerations militate against a surcharge.
Feather v. United Mine Workers of Am., 711 F.2d 530, 540 (3d Cir. 1983).
Having fully considered the totality of the circumstances in this case, in light of the aforementioned precedent from the Supreme Court and Federal Circuit, demanding a showing of delays by the patentee and prejudice to the infringer, see Gen. Motors Corp., 461 U.S. at 655-56 and Crystal Semiconductor Corp., 246 F.3d at 1361-62, each of which were found satisfied in the context of the Court's laches decision, ( see Docket No. 920), and after weighing the factors set forth by the Court of Appeals for the Third Circuit, see Feather, 711 F.2d at 540, the Court finds that CMU's exceptional delays in prosecuting this case and its corresponding failure to timely investigate the infringement allegations fully justify denying CMU's request for prejudgment interest.
In this Court's estimation, the first factor, which requires a showing of diligence in prosecution of the action, plainly favors Marvell. To this end, the Court reiterates its prior holding that CMU unreasonably and inexcusably delayed filing this litigation for a period of five years and eleven months because it failed to timely conduct a sufficient investigation into infringement allegations brought to its attention by the inventors, Drs. Aleksandar Kavcic and Jose Moura. (Docket No. 920 at 34-54). CMU's delays were also largely self-serving as the evidence shows that it did not take the inventors' initial allegations seriously and conducted only a cursory investigation of infringement by contacting its Data Storage Systems Center ("DSSC") partner, Seagate, for a free opinion on the matter, without disclosing that it was Marvell - Seagate's own chip vendor - which was allegedly infringing. See id. ; see also Crystal Semiconductor Corp., 246 F.3d at 1362 (holding that "self-serving" delays warranted denial of prejudgment interest). The record further demonstrates that until November of 2008, CMU chose not to invest the time and money it would take to investigate the alleged infringement, even after the inventors provided significant information about the infringement to CMU many years earlier, with continued updates throughout the laches period. For example,
CMU was notified in April of 2003 that Marvell was producing chips "exactly" as the inventors set forth in their papers and claimed in the patents;
CMU was told in July of 2004 that Marvell had a subroutine in its detector named after Dr. Kavcic and was marketing new chips designed to combat media noise and Dr. Kavcic demanded that a lawsuit be initiated; and,
CMU was advised that Marvell had obtained its 585 Patent citing CMU's Patents as prior art in early 2006.
(Docket No. 920 (citing, at various points, Def. Exs. 212, 246, 266; Docket Nos. 816-1 at 4; 816-4 at 10-12; 674 at 220-21)). Additionally, CMU never followed up with Seagate, which purchased millions of the Accused Chips from Marvell during this period of CMU's inaction and Seagate then incorporated the Accused Chips into its hard drives and sold them to third parties down the stream of commerce. (Docket No. 920; Def. Ex. 213, 214). Indeed, CMU's decision to commence a full investigation of Marvell's infringement only occurred in late 2008 after the inventors attempted to obtain the patents from CMU through a release in order to pursue a lawsuit without CMU and with financial support from Astro Teller of Cerebellum Capital and potentially a hedge fund. ( Id. (citing Def. Ex. 306)). This lack of timely action cannot suffice to demonstrate diligence. See Feather, 711 F.2d at 540.
The Court believes that the second factor requiring unjust enrichment by Marvell is neutral, when viewed in the context of the Court's laches decision. Again, the Court determined that Marvell was prejudiced by CMU's delays because CMU failed to preserve all potentially relevant evidence (including, among other things, emails and notebooks previously maintained by the inventors) during the laches period. (Docket No. 920 at 54-61). The Court adds that although it found an insufficient nexus to demonstrate "economic prejudice" in the context of the laches defense, ( id. at 61-68), it is undisputed that Marvell's sales of chips containing the infringing technology increased dramatically during the period of CMU's delays and thereafter, causing CMU's damages to escalate substantially into the billion dollar jury award. See id. at 68 ("At most, Marvell has shown that its exposure to a judgment for its infringement has grown substantially (along with its sales and revenues from the infringing chips) during the laches period and that it simultaneously made significant capital expenditures in order to support its expanding business."); see also Crystal Semiconductor Corp., 246 F.3d at 1362 ("Crystal's two year delay in initiating the present suit caused the damages owed by TriTech and OPTi to escalate. The record contains sufficient evidence for the district court to determine that Crystal's delay was self-serving and resulted in prejudice to the defendants."). Likewise, the requested prejudgment interest on this award has increased significantly because of the lengthy period of time wherein CMU took no affirmative action to protect its rights. See id. Despite these findings, the Court denied the laches defense due to Marvell's willful infringement of the patented methods, sustaining approximately $545 million of the jury's verdict and one hundred percent (100%) of CMU's claimed damages during the laches period. (Docket No. 920). Accordingly, CMU has been sufficiently compensated for its losses of the reasonable royalties through the jury's verdict and the award of supplemental damages, without the imposition of prejudgment interest as Marvell was prejudiced by CMU's delays, rendering this factor neutral. See Feather, 711 F.2d at 540.
The third factor examines whether the award would be compensatory in nature. The Court recognizes that it retains discretion to adjust the rate of prejudgment interest and to award same on all or part of the judgment award and to order that such interest be compounded or not. See Uniroyal, 939 F.2d at 1545. However, the potential size of any prejudgment interest award, e.g., those proffered by CMU, ranging from $211 million to $326 million, demonstrates that an award of prejudgment interest would represent an unearned windfall to CMU. (See Docket Nos. 788, 789, 852). In this Court's opinion, CMU's suggestion that it should be awarded "lost opportunity" damages it would have earned on royalties is undermined by evidence of its inactivity in response to allegations which should have caused it to investigate infringement, all of which the Court considered in the context of Marvell's laches defense. ( See Docket No. 920). Again, CMU did not act like a reasonable patentee because it was unwilling to timely invest and pursue infringement allegations. The Court, thus, cannot conclude that it would have aggressively invested the royalties where the record overwhelmingly establishes that CMU had little interest in protecting the patents, despite repeated requests from the inventors. ( Id. at 20-22). Further, although the approximately $545 million in pre-suit damages are classified as compensatory in nature; this award was sustained only because of Marvell's willful infringement. ( Id. at 68-72). Otherwise, the well-supported laches defense would have barred the claim for pre-suit damages. ( Id. ). Given same, any prejudgment interest added to that portion of the award (and the portion of prejudgment interest which is compounded against the escalating damages throughout the pendency of the lawsuit) would be, at least in part, punitive in nature. See Humanscale Corp., 2010 WL 3397455, at *1 (citing Gen. Motors Corp., 461 U.S. at 655). (Prejudgment interest is not punitive, thus "it must be applied only to the compensatory damages, not enhanced or other punitive damages."). Accordingly, this factor weighs against awarding prejudgment interest.
The final factor for the Court's consideration looks to the equities between the parties. But, the equities have already been fully examined by the Court in the context of the laches defense and such factors underlie the Court's holdings above. (Docket No. 920). On balance, the Court believes that the pre-suit damages of approximately $545 million should be awarded to CMU given Marvell's willful infringement for the laches period, but an additional award of prejudgment interest added to the judgment award of $1.249 billion, at any rate, compounded or not, is unwarranted due to CMU's inexcusable and unreasonable delays in prosecuting this case and the prejudice to Marvell attendant to such delays.
For these reasons, CMU's Motion  is denied to the extent that it seeks an award of prejudgment interest under 35 U.S.C. § 284.
C. Enhanced Damages
The Court now moves on to the issue of enhanced damages, which has become the "elephant in the room" between the parties. It remains contested on all fronts. (Docket Nos. 790, 793, 833, 850, 862). CMU seeks an unprecedented financial penalty against Marvell requesting that the Court impose a penalty of at least half a billion dollars and up to $2.5 billion. (Docket No. 793). To this end, CMU advocates that the willful infringement by Marvell is sufficient to justify a full trebling of damages in this case, (i.e., $3, 746, 071, 677), but, recognizing the scope of the damages award exceeding one billion dollars, alternatively contends that the Court should award enhanced damages in any of the following amounts: (1) double damages, (i.e., $2, 497, 381, 118); (2) double pre-suit damages, (i.e., $1, 803, 240, 562); or (3) double post-suit damages, (i.e., $1, 942, 831, 115). ( Id. ). In opposition, Marvell initially maintains that enhanced damages are not appropriate but continues that if the Court should find its infringement willful and exercise its discretion to award enhanced damages, any enhancement should not exceed twenty percent (20%) of the damages award which would result in a total damages award of $1, 498, 428, 671. (Docket No. 834 at 24-25). Marvell suggests that such an award would be more appropriately tied to its level of culpability in this case. ( Id. ).
Section 284 authorizes the Court to award up to treble damages to a prevailing patentee. See 35 U.S.C. § 284 ("the court may increase the damages up to three times the amount found or assessed."). An award of enhanced damages under section 284 is punitive in nature and awarded in the Court's discretion. See Whitserve, LLC v. Computer Packages, Inc., 694 F.3d 10, 37 (Fed. Cir. 2012) cert. denied, 133 S.Ct. 1291 (U.S. 2013) ("enhanced damages, however, are punitive, not compensatory, and can be awarded only in the judge's discretion."). The Court has already determined that Marvell wilfully infringed CMU's patents in its prior decision of September 23, 2013, ( see Docket No. 901), and this initial finding is sufficient to justify the imposition of a penalty of enhanced damages against Marvell, as the willful infringer. See Whitserve, 694 F.3d at 37 (quotation omitted) ("First, the fact-finder must determine whether an infringer is guilty of conduct upon which increased damages may be based...., an act of willful infringement satisfies th[e] culpability requirement and is, without doubt, sufficient to meet the first requirement to increase a compensatory damages award."). The remaining decision for the Court requires the exercise of its sound discretion to determine "whether, and to what extent, to increase the damages award given the totality of the circumstances." Id. (quotation omitted). To be clear, a finding of willful infringement does not necessitate the imposition of enhanced damages; however, after such a finding is made, the Court must explain its reasons for declining to award enhanced damages. See id. ("Upon a finding of willful infringement, a trial court should provide reasons for not increasing a damages award." (emphasis added)).
The Federal Circuit has held that the Read factors, established in Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992), should be evaluated and weighed in determining whether damages should be enhanced under section 284. Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1348 (Fed. Cir. 2011). The Read factors are:
(1) whether the infringer deliberately copied the ideas or design of another;
(2) whether the infringer, when he knew of the other's patent, investigated the patent and formed a good faith belief that it was invalid or that it was not infringed;
(3) the infringer's behavior in the litigation;
(4) the infringer's size and financial condition;
(5) the closeness of the case;
(6) the duration of the misconduct;
(7) the remedial action by the infringer;
(8) the infringer's motivation for harm; and,
(9) whether the infringer attempted to conceal its misconduct.
Id. Further, the "paramount determination in deciding to grant [an] enhancement and the amount thereof is the egregiousness of the defendant's conduct based on all the facts and circumstances." Read, 970 F.2d at 826. Both parties have extensively considered the Read factors in their submissions as well as during oral argument. (Docket Nos. 790, 793, 833, 850, 862). ...