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c.Public InterestThe final factor also weighs in favor of grantingpermanent injunctive relief.There has been no showing thatthe public will be severely impacted if HT is not permittedto sell double celled honeycomb window blinds with a pleat onthe front and a tab in the back.Although these products areimportant to these two parties, as evidenced by their pursuitof this case, window blinds are not of serious importance tothe public's health, welfare, or safety.Furthermore, thereare many alternative window coverings in the marketplace.In comparison, were an injunction not issued, therewould be harm tothe public'sinterestin having patentrights enforced and protected in the courts.Therefore, this final factor also weighs in favorof entering a permanent injunction.d.SummaryUpon consideration of each of the four factors asapplied to the facts and circumstances of this case, we reliefinfringement of the '120 Patent.11ofagainstgrantingHT'sJudkinscontinued

Judkins's motion for a permanent injunction [doc.no.322]is granted.The court will enter an appropriateorder in conjunction with this memorandum.B.Judkins's Motion for Prejudgment InterestThe jury awarded Judkins damages of 154,776.04 forinfringingsalesofHT'sPolarisbranddouble celledhoneycomb window blinds between 2007 and 2009.Judkins hasnow filed a motion seeking prejudgment interest in the amountof 50,620.80,or roughly 33% ofthe damages award.HTagrees that an award of prejudgment interest is warranted,but claims that the amount requested by Judkins is excessive.We conclude that although prejudgment interest isappropriate in this case, the amount proposed by Judkins isinappropriatecompensatory.becauseitAs such,would bepunitive,ratherthanwe will award Judkins prejudgmentinterest using HT's proposed calculations, resulting in anaward in the amount of 14,195.68.There is no dispute that we can, and should, awardprejudgment interest in this case.35 U.S.C.§284i AllenArchery, Inc. v. Browning Mfg. Co., 898 F.2d 787, 791 (Fed.Cir. 1990).Prejudgment interest is awarded \\ . to make thepatent owner whole, since his damages consist not only of thevalue of the royalty payments but also of the foregone use of12

the money between the time of infringement and the date ofthe j udgment .IIGeneral Motors Corp. v.U.S. 648, 655 56 (1983).Devex Corp.,461,Prejudgment interest is awarded tocompensate the patent owner, not to punish the infringer.Underwater Devices,Inc. v. Morrison Knudsen Co.,717 F.2d1380, 1389 (Fed. Cir. 1983) (overruled on other grounds in Inre Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007)).The district court is charged with setting the determining the appropriate method of compounding.andAllenArchery, 898 F.2d at 791.Judkins contends that interest on the 154,776.04damages award should be calculated based on the 16.07% peryear interest rate applied to late royalty payments under pounding the interest yearly, Judkins asks this court toawardhim 50,620.80in prejudgmentinterest.AlthoughJudkins refers generally to various alternative methods ofcomputing prejudgment interest in his reply brief, he neversets forth an actual alternative computation or award.HT contends that using a late payment interest rateas the basis for an award of prejudgment interest is,definition, punitive.byInstead, HT suggests that prejudgmentinterest should be based on the interest rate Judkins would13

have paid had he borrowed money during the time of HT'sinfringement.According to HT,prevailing prime rate,mid year convention.this rate should be thecompounded yearly according to theUsing this method,HT arrives at aprejudgment interest award of 14,195.68.We find that HT's proposed prejudgment interestcalculation mostaccurately reflectsaward to Judkins.afullcompensatoryJudkins's proposal is admittedly based ona punitive interest rate, which, as we have set forth ejudgmentInstead, awarding Judkins prejudgment interest atthe rate Judkins would have paid to borrow money, as proposedby HT, compensates Judkins for what he lost as a result ofHT'sinfringement,i.e.,the useofthe money thejuryawarded to him as patent infringement damages.Assuch,weaward prejudgmentinterestonthe 154,776.04 compensatory damages award at the prime rate,compounded yearly according to the mid year convention.Thus,we grant Judkins's motion for prejudgment interest[doc.no.224]and award him prejudgment interest in theamount of 14,195.68.14

C.Plaintiff's Motion for Attorney Feesand Enhanced DamagesJudkins has filed a motion seeking both enhanceddamages,pursuant to 35 U.S.C.pursuant to 35 U.S.C.§285.284,§and attorney fees,Judkins allegesthat bothremedies are warranted in this case because the jury foundHT's infringement to be willful.Although Judkins's motioncollapses the two inquiries, enhanced damages and attorneyfeesareseparateconsiderations.individually below.In summary,Wewilladdressthemwe conclude that neitherenhanced damages, nor attorney fees are appropriate in thiscase.1.Enhanced DamagesSection 284 of the Patent Act states that " . thecourt may increase the damages up to three times the amountfound or assessed."discretionary.35 U.S.C. § 284.Jurgens v.(Fed. Cir. 1996).CBK,Enhanced damages areLtd.,80 F.3d 1566,1570Although a finding of willful infringementauthorizes the award of enhanced damages, it does not mandateit.Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297,1308 (Fed. Cir. 2005) (citing Modine Mfg. Co. v. Allen Group,Inc., 917 F.2d 538, 543 (Fed. Cir. 1990)) i Cybor Corp. v. FASTechnologies,Inc., 138 F.3d 1448, 1461(Fed. Cir. 1998).Instead, we must look to the totality of the circumstances of15

the case, considering both aggravating and mitigating facts,before reaching adetermination ofwhether,and to whatextent, we should exercise our discretion and award enhanceddamages.OdeticsIInc. v. Storage Technology Corp., 185 F. 3d1259, 1274 (Fed. Cir. 1999)F.2d816,826determination . is(Fed.theiRead Corp. v. Portec, Inc., endant1sconduct based on all the facts and circumstances").Judkins claims that the jury's compensatory damagesaward should be trebled to 464,328.12 for the followingreasons:(1) HT made no investigation into Judkins's claimsof potential patent infringement; (2) HT arranged for BlindsTo Go to directly import infringing product from Taiwan whilethis case was pending;(3) HT pursued its state law claimseven after the court denied its motion for a thatHTwillfullyJudkins does not address the Read factors in hismotion.The Court of Appeals for the Federal Circuit hasprovided district courts with several factors to considerwhen determining whether damages should be enhanced.are commonly referred to as the Read factors.factorsinclude:copied theideas(1)whetheror design of16theinfringeranother i(2)TheseThe Readdeliberatelywhetherthe

infringer,when he knew of the other's patent protection,investigated the scope of the patent and formed a good faithbelief that the patent was invalid or not infringed;(3) theinfringer's behavior as a party to the litigationi(4)infringer's size and financial conditionithe case;remedial(6)(5)thecloseness ofduration of the infringer's 'smotivation for harm; and (9) whether the infringer attemptedto conceal its misconduct.Corp.I589F.3dDynamics Corp.v.(Fed. Cir. 2006)826 27(Fed.1246,iCir.i4i Ltd. Partnership v. Microsoft1273 74(Fed.Vaughan Co.!Inc.,Cir.2009);Liguid449 F.3d 1209,1225Read Corp. v. Portec, Inc., 970 F.2d 816,1992)(superseded on other groundsasrecognized in Hoechst Celanese Corp. v. BP Chemicals Ltd., 78F.3d 1575, 1578 (Fed. Cir. 1996)).An evaluation of the above factors assists us ,and the aggravating and mitigating ndawardoftheseunique to this case, we conclude that it is not appropriateto enhance the jury's damage award.Deliberate Copying Judkins does not allege in hismotion that HT engaged in deliberate copying.In his replybrief Judkins alleges that copying can be inferred due to the17

similarity of HT/s products to Judkins/s screation.Wedisagree that such an inference must be made on either basis.The fact remains that Judkins has failed to identify anyevidence that HT copied his inventions.ThereforeIthis factor weighs against enhancingdamages.GoodFaith BeliefinInvalidity andUnenforceability Judkins contends in his motion that HTcould have had no good faith belief in its defenses for thesole reason that Mr. Miles admitted at trial that "HT madeno investigation"January 28Iinto the allegations made in Judkins IS2007 letter.Mr.Miles's oft quoted allegedadmission that HT ignored Judkins's threat letter is beliedby the undisputed facts surrounding this case.Mr. Miles's statement must be read in the contextof his entire testimony.salesman.He told the jury that he was aThere was no evidence that he was involved in thetechnical aspects of patent infringement analysis, nor hadthe skills and ability to participate in the HTwasproceeding in accordance with third party patents and thathe conveyed that information to his customer base when asked.That a salesman was not privy to detailed discussions engaged18

in by patent attorneysin arriving atan ultimatelegalconclusion does not alone prove that HT had no good faithbelief in its defenses.Rather, the evidence proves that HT did not ignorethe Judkins patents.Had it done so,HT could not havecorresponded with Judkins in 2005 and 2006 regarding itssingle celled product, nor filed a lawsuit in federal courtin California within two weeks of receiving Judkins's January28, 2007 letter regarding its double celled product.Judkins presents no other evidence, other than theMiles testimony, that this factor favors enhancing damages.Considering the background facts of this case and the contextof that testimony, it does not, alone, indicate that HT hadno good faith belief in its invalidity, unenforceability, ornon infringement ncing damages in this case.Litigation Behavior In his motion, Judkins faultsHT for pressing its state law claims even after the courtdenied its motion for a preliminary injunction based on them.As Judkins correctly notes, the court also disposed of thoseclaims as a matter of law during trial.In order to succeed on its state law claims, HT wasrequired to prove that Judkins made the accusations of patent19

infringement against it in bad faith; or that the accusationswere objectively baseless, and if so, then also subjectivelybaseless.Globetrotter Software Eran Industries,1374 75, 1386 (Fed. Cir. 1998)iElan Computer Group,Inc.,Cir.2004)unabletodisposeofGP500 F.3d 1318,Zenith Electronics Corp. v.Exzec, Inc., 182 F.3d 1340, 1353 (Fed. Cir. 1999).wasiany infringement,enforceability issues via summary judgment.The courtvalidity,orAs such, it wasnot improper for HT to pursue its business tort claims attrial.That the court ultimately was able to dispose of HT'sclaims as a matter of law, after evidence was admitted, andkey witnesses testified,at trial,does not prove that HTacted improperly by pressing its claims.Moreover, before we award enhanced damages based onthis factor,case.we must look to all the circumstances of thisThose circumstances include consideration of s.Itisinappropriate to punish HT for its litigation conduct included Judkins's request to extend the discovery deadlinethree months after it had passed by way of motion for thirdparty discovery, his refusal to accept and litigate accordingto the court's claim construction ruling,20including in his

case in chief before the jury, his motion alleging that anindustry recipient of the February 7, 2007 threat letter wasan indispensable party, and his use of filings from this casein the patent prosecution process before notifying the patentexaminer of this litigation, among other things.Therefore, we will not punish HT with enhanced chsurvived summary judgment, when Judkins's conduct throughoutthis case was itself inappropriate and disruptive.This factor weighs against enhancing damages.Size and FinancialCondition Judkinsmade noallegations in his motion for enhanced damages regarding thesize and financial condition of HT.In his reply brief, henotes that HT is being indemnified by Teh Yor,partner in Taiwan.However,its vendorJudkins fails to explain howthat fact affects our analysis.The record does not containany evidence regarding the effect that a nearly half milliondollar verdict would have on Teh Yor, or HT for that matter.As such,this factor does not weigh in favor ofenhancing damages.Closeness of the Case Judkins made no allegationsregarding this factor in his motion.In his reply brief, heclaims that the jury's verdict, which was in Judkins's favoron allissues,and theCourt of Appeals21fortheFederal

Circuit's statement that "HT faced slim odds of prevailing"support the conclusion that this was not a close case.Wedisagree.As an initial matter, we must clarify the contextof the court of appeals's quotation relied upon by Judkins.Theappellatecourt wasreferringnotto HT'spotentialultimate success in defending the patent infringement case,or proving its business tort claims, but to HT's likelihoodof prevailing on an appeal from the denial of a motion for apreliminary injunction, where the standard of review is clearerror.The court of appeals did not indicate in its opinion,as Judkins suggests, that HT's business tort counterclaims,or patent defenses were weak.Instead, substantial questions remained regardinginfringement, validity, and enforceability, as well as HT'sbusiness tort counterclaims, as the parties went into trialof this matter.Despite extensive briefing, the court couldnot resolve any of these issues through summary judgment.The mere fact that Judkins won is not a sufficient basis forawarding enhanced damages,jurysidedwithJudkinsas Judkins contends.cannotbeusedasaThat thehindsightjustification to find that this was not a close case.was.22It

On balance, we find that this factor weighs againstenhancing ns regarding this factor in his motion.noIn hisreply brief he argues that this factor weighs in favor ofenhancing damages because HT continues to sell its Polarisbrand products to this day.Patent issued.Judkins sued HT the day the '120Judkins did not seek a preliminary injunctionto stop HT's infringement during the pendency of this case.Hedidtimelyfileamotionforapermanentinjunction following entry of the jury's verdict.entryofapermanentinj unctionnolongerHowever,automaticallyfollows a finding of even willful patent infringement.eBayInc. v. MercExchange, L.L.C., 547 U.S. 388, 390 94 (2006).Therefore we cannot fault HT,and punish it with enhanceddamages, for continuing to sell its product in the absence ofapreliminaryinjunctionand whilethecourtconsideredJudkins's motion for a permanent injunction.This factor weighs against enhancing damages.RemedialActionJudkinsregarding this factor in his motion.madenoallegationsIn his reply brief, heclaims that this factor weighs in favor of enhancing damagesbecause HT continued to sell the Polaris products duringtrialeventhoughithadno23goodfaithbeliefinits

tions in our discussion of the good faith belief andduration of infringement factors above.This factor weighs against enhancing damages.Motivation to Harm Judkins made no allegationsregarding this factor in his motion.In his reply brief, heclaims that this factor weighs in favor of enhancing damagesbecause HT intended to drive up Judkins's litigation costs byfiling suit in California and appealing this court's denialof a preliminary injunction.litigation behaviorfactorAs we did in considering theabove,wemustlooktothetotality of the circumstances to determine whether HT shouldbe punished by the imposition of enhanced damages.In this case,allegationsagainstHTeven if we were to take Judkins'sastrue,consider as mitigating factorsextendpassed,the discovery deadlinefiledawethatwouldalsoJudkinsthree monthshavetoattempted toafterseemingly unnecessary motiontoithadjoin anindispensable party, attempted to ignore the court's claimconstruction through most ofthe postclaim constructionproceedings, including trial, and used litigation documentsfromthiscasein thepatent prosecution process beforeinforming the examiner that this action was pending.Therefore, when viewed in the totality of the case,24

this factor weighs against enhancing damages.Concealing Misconduct Judkins asserted in hismotion, and reasserts in his reply brief that HT's role inarrangingsalesdirectlyfromwarrants enhanced damages.TehYortoBlinds To GoAlthough HT has offered evidenceto show that Blinds To Go requested this arrangement, gementdi scovery .Aswasnotsuch,itreadilycan beinterpreted as an attempt to conceal sales.This factor weighs in favor of enhancing ity d both during trial and throughout the three yearsthat we have presided over this case, we find that an awardof enhanced damages is unwarranted.thejury fo

HT WINDOW FASHIONS CORP., Defendant. MEMORANDUM Gary L. Lancaster, March"W , 2010 Chief Judge. This is an action in patent infringement. On November 12, 2009, a jury found that HT willfully infringed damages. The jury also found that HT would infringe another