> If you violate a patent you know exists, you are liable for treble damages.
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...