Doctrine of willful patent infringement: Evolution under American patent law and need of further research

Though there are criminal remedies specifically for trademark and copyright infringement the same is not a mandate in case of patent infringement. Article 61 of TRIPS, is the sole article containing requirements for criminal procedures that signatories to the Agreement may implement. Article 61 was debated with regard to the applicability of criminal procedures, and finally in case of patent infringement, the criminal measures were considered optional due to the complexity involved in validity and infringement cases, and as such could only be applied in case of ‘willful infringement of patent’. Some countries provide criminal sanctions in case of patent infringement in general whether willful or otherwise. The American patent law prescribes the remedy of trebling damages if the infringement of patent is ‘willful.’ However the American courts are still struggling as to what amounts to ‘willfulness’.