Radware’s only direct evidence of willful infringement was that F5’s in-house counsel received a Notice of Allowance on an F5 patent that listed the patent-in-suit in the “References Cited.” Citing to the holding in Halo that only “‘intentional or knowing’ infringement may warrant enhanced damages,” the district court held the direct evidence failed to sufficiently support any willfulness claim, particularly because there is no duty for a party to review the patents listed in a PTO notice.
Radware also pointed to circumstantial evidence suggesting that Radware and F5 were competitors and thus F5 must have been aware of the patent-in-suit. The court similarly found these arguments about competition between the parties unpersuasive, noting there was no evidence in the record that F5 actually considered Radware a competitor, and that F5 did not track any company’s patents, let alone Radware’s patents or patent applications.
Radware, Ltd. v. F5 Networks, Inc., Case No. 5:13-cv-02024-RMW (N.D. Cal. August 22, 2016)