While the United States generally operates on a pay-your-own-way system that avoids punitive awards, current patent law standards seem to fly in the face of this general scheme. Following the ground-shaking cases of Octane Fitness and Halo, patent law now allows awards of both treble damages and attorney’s fees after a mere showing of conduct akin to negligence. Defendants can be threatened with both of these crippling enhanced awards based on a totality of the circumstances showing of objective evidence. Moreover, awards of up to treble damages and attorney’s fees are left entirely to the discretion of the trial judge—meaning that a successful appeal of a crippling double sanction is unlikely. Given patent law’s departure from the traditional enhanced damages scheme and willingness to sanction conduct approaching mere negligence, a differentiation must be made between situations calling for treble damages and those calling for attorney’s fees in order to avoid the draconian remedy of sanctioning the same conduct twice.
