       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

      WCM INDUSTRIES, INC., A COLORADO
               CORPORATION,
            Plaintiff-Cross-Appellant

                           v.

        IPS CORPORATION, A DELAWARE
                CORPORATION,
               Defendant-Appellant

  AMERICAN BRASS & ALUMINUM FOUNDRY
COMPANY, A CALIFORNIA CORPORATION, JOHN
           DOE, AN INDIVIDUAL,
                  Defendants
            ______________________

                 2016-2211, 2016-2268
                ______________________

   Appeals from the United States District Court for the
Western District of Tennessee in No. 2:13-cv-02019-JPM-
tmp, Chief Judge Jon P. McCalla.
                 ______________________

               Decided: February 5, 2018
                ______________________

    J. MICHAEL JAKES, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, argued for
plaintiff-cross-appellant. Also represented by KATHLEEN
2                   WCM INDUSTRIES, INC.   v. IPS CORPORATION



DALEY, JASON LEE ROMRELL; IAN WALSWORTH, Lewis
Brisbois Bisgaard & Smith, Denver, CO.

   DAVID JOHN SILVIA, Locke Lord LLP, Stamford, CT,
argued for defendant-appellant. Also represented by
HUGH S. BALSAM, Chicago, IL; JOSEPH ANTHONY FARCO,
New York, NY; BRUCE JOSEPH ROSE, Alston & Bird LLP,
Charlotte, NC.
               ______________________

    Before PROST, Chief Judge, WALLACH and TARANTO,
                     Circuit Judges.
PROST, Chief Judge.
    WCM Industries, Inc., filed this patent infringement
action in the United States District Court for the Western
District of Tennessee, No. 2:13-cv-02019, alleging that
certain IPS Corporation bathtub waste and overflow drain
assemblies infringed its patents, U.S. Patent Nos.
8,302,220 (“’220 patent”); 8,321,970 (“’970 patent”); and
8,584,272 (“’272 patent”). The case was tried to a jury,
which found that IPS willfully infringed WCM’s patents.
The jury awarded WCM over $1 million in damages, and
the district court awarded WCM maximum enhanced
damages because of IPS’s willfulness. After trial, the
district court granted IPS’s motion for judgment as a
matter of law as to no infringement under the doctrine of
equivalents as to one of its product lines, but it let stand
the jury’s verdict of indirect infringement and willfulness.
    IPS appeals the district court’s denial of its motions
for judgment as a matter of law as to no indirect in-
fringement and as to no willfulness. IPS also appeals the
district court’s award of maximum enhanced damages.
WCM cross-appeals the district court’s grant of IPS’s
motion for judgment as a matter of law as to no infringe-
ment under the doctrine of equivalents.
WCM INDUSTRIES, INC.   v. IPS CORPORATION                3



    Reviewing the record in the light most favorable to
WCM, we conclude that WCM provided sufficient evi-
dence for a reasonable jury to have found infringement
under the doctrine of equivalents and to have found that
IPS’s infringement was willful. We therefore reverse the
district court’s grant of IPS’s motion for judgment as a
matter of law as to no infringement under the doctrine of
equivalents and affirm the district court’s denial of IPS’s
motion for judgment as a matter of law as to no willful-
ness. We also affirm the district court’s denial of IPS’s
motion for judgment as a matter of law as to no indirect
infringement. Finally, we vacate the district court’s
award of maximum enhanced damages and remand for
the district court to reconsider the amount by which the
damages should be enhanced, if at all.
                        BACKGROUND
    WCM’s patents generally describe improvements in
bathtub overflow assemblies. The assemblies include an
overflow portion that prevents an accidental overflow of
water from a bathtub and a drain portion that allows the
drainage of water from the bathtub. Traditional bathtub
overflows were difficult to install. Tightening screws
during installation often left sharp burrs that could cut
through skin. Traditional overflows were also prone to
leaks, which could result in significant, yet hidden, dam-
age to both property and health (i.e., exposure to mold
and mildew). Disassembling traditional overflows for
testing was also difficult.
    One of WCM’s employees, William Ball, developed a
solution to these problems. WCM’s new technology (re-
ferred to as the “Innovator Product”) eliminated leaks,
and it could be installed more easily without the need for
screws. Mr. Ball filed his original patent application on
June 13, 2000, which—by way of WCM filing numerous
continuing applications off of the original patent—later
4                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



resulted in the three patents-at-issue in this case. WCM
began selling its Innovator Product in August 2001.
    On appeal, the parties focus on Claim 12 of the ’220
patent, which is representative of the other claims-at-
issue and reads as follows:
    12. An overflow assembly adapted for interconnec-
    tion to a bathtub, which has a bottom, side walls,
    end walls, and an overflow port in one end wall,
    comprising:
      an overflow pipe with an elbow portion defining
      an upper end portion and a lower end portion,
      said upper end portion having an outer end de-
      fining an inlet, said upper end having threads
      on an outer surface thereof;
      a lip extending radially outwardly from said
      outer surface of the overflow pipe between said
      elbow portion and said upper end portion and
      being spaced from said inlet;
      a nut element with a threaded portion that is
      compatible with said threads of said overflow
      pipe, said nut element having an outer periph-
      ery with a series of radially extending lugs that
      detachably engage an inner surface of a cap that
      fits over said nut.
’220 patent col. 7 l. 8–col. 8 l. 3 (emphasis added); J.A.
226.
WCM INDUSTRIES, INC.   v. IPS CORPORATION               5



    Figure 4 of the ’220 patent depicts an exemplary over-
flow assembly embodiment of the asserted claims.




J.A. 218.
    The overflow assembly has an overflow pipe 62 that
has an elbow portion 65, a washer 94, a nut element 90,
and a cap 96. The nut element 90 has threads compatible
with the threads 68 on the overflow pipe 62. The nut
element 90 secures the overflow pipe 62 to the bathtub by
compressing the bathtub wall between the nut element 90
and the lip 74 of the overflow pipe 62.
    The nut element 90 has a series of radially extending
lugs 92 along its outer periphery. These lugs 92 detacha-
bly engage the inner surface of a cap 96. The cap 96
serves to cover the overflow assembly 60 hardware once
installed.
6                   WCM INDUSTRIES, INC.   v. IPS CORPORATION



    Between 2002 and 2003, American Brass and Alumi-
num Foundry Company (“AB&A”) began offering for sale
a bathtub draining product that the parties to this law-
suit call the “Classic Product.” The Classic Product Full
Kit provided all of the necessary components of a com-
plete bath waste and overflow assembly and includes the
overflow portion (as shown in the image below, including
the overflow elbow, overflow washer, a locknut, and an
overflow plate); the drain portion; and the pipes and tee
that connect the two portions together and to the sewer or
septic system.




J.A. 6800.
    In 2010, IPS bought the assets of AB&A. Following
the asset acquisition, AB&A ceased operations and IPS
continued to source and sell the Classic Product under the
AB&A brand name.
    On December 11, 2012, WCM filed suit against IPS in
the United States District Court for the District of Colo-
rado for patent infringement of two of its patents. Those
patents had only recently been granted: the ’220 patent
issued November 6, 2012, and the ’970 patent issued
December 4, 2012. The next month, WCM voluntarily
dismissed the Colorado suit and refiled the same com-
plaint in the Western District of Tennessee, initiating this
action. WCM’s ’272 patent issued on November 19, 2013,
and was later added to the suit.
WCM INDUSTRIES, INC.   v. IPS CORPORATION                 7



    In 2014, after the filing of the Tennessee suit, IPS re-
vised its Classic Product and ceased manufacturing and
importing that product line. The parties refer to the
redesigned product as the “Revised Classic Product”
(“Revised Product”). Like its predecessor, the Revised
Product Full Kit represented the entire assembly.
    To create the Revised Product, IPS’s modified the de-
sign of the locknut used in the overflow assembly. The
drawing below shows the original locknut of the Classic
Product having “high points” (the six angular points
around the circumference of the locknut) and “finger
indentations” (the curved indentations around the circum-
ference of the locknut). See J.A. 2026–28.




J.A. 6531.
    The only difference between the original locknut
(above) and the modified locknut (below) is that there are
no finger indentations on the modified locknut.
J.A. 2026–28.
8                   WCM INDUSTRIES, INC.   v. IPS CORPORATION




J.A. 6533.
    Granting a pre-trial motion, the district court exclud-
ed the report and testimony of WCM’s technical expert
who was to opine on various issues, including infringe-
ment under the doctrine of equivalents.
    At the end of the trial, the jury found that as to the
Classic Product, IPS infringed literally, contributorily
infringed, and induced infringement. As to the Revised
Product, while the jury found that IPS had not literally
infringed, it did find that IPS infringed under the doctrine
of equivalents, contributorily infringed, and induced
infringement. The jury also found that IPS’s infringe-
ment was willful, that the reasonable royalty rate per
infringing unit was $1.00, and that IPS sold 1,241,524
infringing units. The jury was not asked to decide will-
fulness or damages on a product-by-product basis. Based
on sales of additional infringing units, the total number of
infringing units was 1,383,978, and the total damages
amount was $1,383,978. The district court awarded WCM
maximum enhanced damages pursuant to 35 U.S.C. § 284
because of IPS’s willfulness and ultimately awarded WCM
a total of $4,151,934 in damages.
     After trial, the district court ruled on various motions
for judgment as a matter of law. In particular, it granted
WCM INDUSTRIES, INC.   v. IPS CORPORATION                9



IPS’s motion that IPS’s Revised Product did not infringe
under the doctrine of equivalents. The court upheld IPS’s
liability for indirect infringement with respect to the
Revised Product. Because the ’272 patent had not issued
until after the complaint was filed, the court granted
IPS’s motion of no willful infringement with respect to
that patent. The district court denied, however, IPS’s
motion for judgment as a matter of law of no willfulness
in all other respects.
    IPS appeals the district court’s denial of its motions
for judgment as a matter of law as to no indirect in-
fringement with respect to the Revised Product and as to
no willfulness. IPS also appeals the district court’s award
of maximum enhanced damages. WCM cross-appeals the
district court’s grant of IPS’s motion for judgment as a
matter of law that IPS’s Revised Product did not infringe
under the doctrine of equivalents.
   We have jurisdiction under 28 U.S.C. § 1295(a)(1).
                         DISCUSSION
                               I
    We begin with WCM’s cross appeal because the issue
raised is a predicate for the matters raised in IPS’s ap-
peal. On cross-appeal, WCM asks this court to reverse
the district court’s judgment as a matter of law of no
infringement under the doctrine of equivalents and to
reinstate the jury’s verdict. 1 We review, under Sixth



   1     A properly filed cross-appeal requires that, upon
acceptance of appellee’s argument, our determination
would result in a reversal or modification of the judgment
rather than an affirmance. Symantec Corp. v. Computer
Assocs. Int’l, Inc., 522 F.3d 1279, 1294 (Fed. Cir. 2008).
Because WCM’s cross-appeal does not seek to enlarge the
district court’s judgment of infringement in its favor, we
10                 WCM INDUSTRIES, INC.   v. IPS CORPORATION



Circuit law, the grant or denial of judgment as a matter of
law de novo. Barnes v. City of Cincinnati, 401 F.3d 729,
736 (6th Cir. 2005); see ClearValue, Inc. v. Pearl River
Polymers, Inc., 668 F.3d 1340, 1343 (Fed. Cir. 2012) (“We
review the grant or denial of a motion for judgment as a
matter of law under the law of the regional circuit.”). For
IPS’s motions for judgment as a matter of law, we view
the evidence in the light most favorable to WCM, and
WCM receives the benefit of all reasonable inferences.
Barnes, 401 F.3d at 736. The Sixth Circuit instructs that
we must “indulge all presumptions in favor of the validity
of the jury’s verdict, and should refrain from interfering
with a jury’s verdict unless it is clear that the jury
reached a seriously erroneous result.” Williams v. Nash-
ville Network, 132 F.3d 1123, 1131 (6th Cir. 1997) (inter-
nal quotation marks omitted). Thus, the jury’s verdict
must stand, and IPS’s motion for judgment as a matter of
law of no infringement under the doctrine of equivalents
must be denied unless reasonable minds could come to
but one conclusion in favor of IPS. Barnes, 401 F.3d at
736.
    Under the doctrine of equivalents, “a product or pro-
cess that does not literally infringe upon the express
terms of a patent claim may nonetheless be found to
infringe if there is ‘equivalence’ between the elements of
the accused product or process and the claimed elements
of the patented invention.”       Warner-Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997). The
“essential inquiry” is whether “the accused product or



dismiss its cross-appeal as improper. See Howmedica
Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337,
1343 n.2 (Fed. Cir. 2008). We may nonetheless consider
the arguments raised, as we do here, as alternative
grounds for sustaining the judgment. Symantec, 522 F.3d
at 1294.
WCM INDUSTRIES, INC.   v. IPS CORPORATION                 11



process contain[s] elements identical or equivalent to each
claimed element of the patented invention.” Id. at 40.
Thus, “[i]n order to arrive at its verdict of infringement
under the doctrine of equivalents, the jury must have
found that one or more claim elements were met by
equivalents, and could have found the remainder of the
claim elements were met literally.” Comark Commc’ns,
Inc. v. Harris Corp., 156 F.3d 1182, 1188 (Fed. Cir. 1998).
    “[T]o ensure that a jury is provided with the proper
evidentiary foundation from which it may permissibly
conclude that a claim limitation has been met by an
equivalent,” id., a patentee must establish equivalency by
“particularized testimony and linking argument as to the
‘insubstantiality of the differences’ between the claimed
invention and the accused device . . . ,” Tex. Instruments
Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1567
(Fed. Cir. 1996). 2 Generalized testimony as to the overall
similarity between the claims and the accused infringer’s
product or process will not suffice. Id. “These evidentiary
requirements assure that the fact-finder does not, under
the guise of applying the doctrine of equivalents, erase a
plethora of meaningful structural and functional limita-
tions of the claim on which the public is entitled to rely in
avoiding infringement.” Id. (internal quotation marks
omitted).
    WCM first contends that the district court’s decision
to disregard the jury’s verdict of infringement under the
doctrine of equivalents rested on a misapprehension of the


    2    Such evidence must also be presented on a limita-
tion-by-limitation basis. Tex. Instruments, 90 F.3d at
1567. Here, the infringement dispute at trial involved
only a single claim limitation. Accordingly, this “limita-
tion-by-limitation” requirement is not at issue here be-
cause the only evidence at issue on appeal was presented
at trial for the single disputed limitation.
12                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



law. Specifically, WCM points to the district court’s
holding that because it had excluded WCM’s expert
opinion on the doctrine of equivalents and “WCM did not
present opinion testimony on infringement, none of the
evidence introduced at trial is sufficient to prove in-
fringement under the doctrine of equivalents.” J.A. 5653–
54 (emphases added) (footnote omitted). WCM further
highlights that in setting aside the jury’s verdict, the
court simply rejected the evidence introduced at trial for
not being opinion testimony and never reviewed the
record for substantial evidence. Thus, WCM maintains,
the court adopted an improper per se rule that opinion
testimony—and in particular, expert testimony—is re-
quired to establish equivalency.
    We agree with WCM that our precedent does not re-
quire opinion testimony, and certainly does not require
expert opinion testimony, for a finding of equivalence.
Rather, “[p]roof can be made in any form: through testi-
mony of experts or others versed in the technology; by
documents, including texts and treatises; and, of course,
by the disclosures of the prior art.” Graver Tank & Mfg.
Co. v. Linde Air Prod. Co., 339 U.S. 605, 609 (1950). Such
evidence, however, given “the difficulties and complexities
of the doctrine,” must “be presented to the jury or other
fact-finder through the particularized testimony of a
person of ordinary skill in the art.” AquaTex Indus., Inc.
v. Techniche Sols., 479 F.3d 1320, 1329 (Fed. Cir. 2007).
While this person is “typically a qualified expert,” he need
not be in every case. Id. (emphasis added). As is the case
here, where the technology is “easily understandable
without the need for expert explanatory testimony,”
expert testimony is not required. See Union Carbide
Corp. v. Am. Can Co., 724 F.2d 1567, 1573 (Fed. Cir.
1984).
    Although the grounds for the district court’s judgment
were erroneous, we review a grant or denial of judgment
as a matter of law, as noted above, de novo. IPS argues,
WCM INDUSTRIES, INC.   v. IPS CORPORATION               13



as it did before the district court, that the evidence of
record is legally insufficient proof of infringement under
the doctrine of equivalents to support the jury’s finding.
In response, and in support of the jury verdict, WCM
relies on the testimony of a number of witnesses, includ-
ing: Mr. Humber (IPS’s Director of Engineering), Mr.
Fink (a WCM employee), and Mr. Ball (the inventor of the
infringed WCM patents).
    The infringement dispute at trial focused on only a
single claim limitation: the “lugs” on the nut element that
“detachably frictionally engage[]” a cap. 3 IPS does not
dispute that all of the claim elements were met literally
by the Classic Product. Nor does IPS dispute that the
only difference between the Classic Product and the
Revised Product is the modified locknut design. Accord-
ingly, our inquiry on appeal is whether there is sufficient
evidence such that a reasonable jury could have found
that the claimed “lugs” limitation was met by equivalents.
See Comark, 156 F.3d at 1188. In particular, we must
determine whether there is sufficient particularized
testimony as to the insubstantiality of the differences
between the “lugs” limitation of the claimed nut element
and the “high points” of the accused modified locknut of
IPS’s Revised Product such that a reasonable jury could
have made an equivalency finding. If so, then we must
reinstate the jury verdict. See id.
    First, with respect to the “lugs” limitation of the
claimed nut element, WCM points to Mr. Ball’s testimony
regarding the purpose of the lugs in his invention and
how the lugs engage the inner surface of a cap. J.A. 1483,
1522–23. As Mr. Ball explained, frictional engagement
holds the cap in place once the lugs contact the inner
surface of the cap. J.A. 1522. The term “frictional en-


   3   The district court construed the term “detachably
engage” as “detachably frictionally engaged.” J.A. 4457.
14                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



gagement” refers to “the resistance” felt “when . . . pass-
ing one object over another object” and, more particularly,
“the resistance between the cap and the nut.” Id.
    Next, with respect to the “high points” of the accused
modified locknut of the Revised Product, WCM identifies
the testimony of Mr. Fink and Mr. Humber.
    Mr. Fink demonstrated the installation of the Revised
Product’s modified locknut and cap while referring to the
instructions accompanying that product. J.A. 1255–57.
The instructions read: “Place the Overflow plate onto the
locknut . . . . Turn the Overflow plate clockwise until it
reaches a high point on the locknut. The Overflow plate
will then stay in position.” J.A. 6687 (emphasis added).
Mr. Fink testified while turning the Overflow plate to a
high point that “[y]ou can feel that there’s greater re-
sistance at certain points than there are at other points,
and then it clicks a little bit.” J.A. 1257. Mr. Fink also
testified that IPS’s modified locknut and cap were inter-
changeable with WCM’s Innovator locknut and cap.
J.A. 1257. Mr. Humber, an IPS employee, also testified
that the modified locknut has six features, “one on every
corner point along the locknut,” that “are all along the
outer periphery of the modified locknut,” “on the outer
circumference of the nut,” “in places where the cap fits
over the nut.” J.A. 2054, 2082.
    Immediately preceding this testimony, Mr. Fink first
demonstrated the installation of the Classic Product’s
original locknut and cap while referring to the instruc-
tions accompanying that product. J.A. 1251–52. The
instructions for the installation of the original locknut are
identical to those for the modified locknut.        J.A. 6686.
Mr. Fink testified while performing this step that “[a]s
you turn it, you can feel points where the cap hits high
points; and you can hear those as you turn it.” J.A. 1252.
As with the modified locknut, Mr. Fink also demonstrated
and testified that IPS’s original locknut and cap were
WCM INDUSTRIES, INC.   v. IPS CORPORATION                15



compatible with WCM’s overflow elbow and thus inter-
changeable with WCM’s Innovator locknut and cap.
J.A. 1252–53.
    This testimony demonstrating that the modified lock-
nut functioned in the same way as IPS’s original locknut,
and that both locknuts were interchangeable with WCM’s
Innovator products, was also corroborated by Mr. Hum-
ber’s testimony. Mr. Humber testified that the only
change between the original locknut of the Classic Prod-
uct and the modified locknut of the Revised Product was
the removal of the finger indentations. J.A. 2028. He also
testified that this removal of the finger indentations did
not change the way IPS’s cap snapped onto the modified
locknut and that it still covered the modified locknut once
it was installed. J.A. 2058–59.
    IPS maintains that this evidence is legally insuffi-
cient. According to IPS, Mr. Humber did not discuss the
patent claims and only compared IPS’s modified locknut
to IPS’s original locknut. IPS submits that Mr. Fink’s
testimony also only involves irrelevant product-to-product
comparisons. Citing to a footnote in Read Corp. v. Portec,
Inc., IPS submits “the comparison must be between the
accused product and the patent claims, and not between
the accused product and the patentee’s commercial em-
bodiment.” IPS Reply Br. 6 (citing 970 F.2d 816, 822 n.2
(Fed. Cir. 1992), superseded on other grounds as recog-
nized by Markman v. Westview Instruments, Inc., 52 F.3d
967 (Fed. Cir. 1995) (“Equivalency to limitations of the
claim must be the focus of the inquiry, particularly in jury
trials. . . . Otherwise, laymen may be led to comparison of
devices, rather than between the accused device and the
claim, and to rely on generalities in the overall purpose of
the devices”)).
   But this court’s “case law does not contain a blanket
prohibition against comparing the accused product to a
commercial embodiment” in an infringement analysis.
16                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



Adams Respiratory Therapeutics, Inc. v. Perrigo Co., 616
F.3d 1283, 1288 (Fed. Cir. 2010). “[W]hen a commercial
product meets all of the claim limitations, then a compar-
ison to that product may support a finding of infringe-
ment.” Id. at 1289 (emphasis added). Here, not only does
WCM’s Innovator Product meet all of the claim limita-
tions, but IPS does not dispute that its Classic Product
also literally meets all of the claim limitations. This, of
course, includes meeting the single claim limitation at
issue on appeal: the lugs on the nut element that detach-
ably frictionally engage a cap. In addition to there being
just one claim limitation in dispute, the understandable
claim language and the straightforward mechanical
technology of the invention also help mitigate any risks
that might typically arise when devices are compared.
Here, for example, the jury did not “rely on generalities in
the overall purpose of the devices,” Read Corp., 970 F.2d
at 822 n.2, nor did the jury “erase a plethora of meaning-
ful structural and functional limitations of the claim,”
Tex. Instruments, 90 F.3d at 1567. Accordingly, in the
specific circumstances presented here, the comparisons
between WCM’s Innovator Product and IPS’s Classic and
Revised Products and the comparisons between IPS’s
Classic and Revised Products are sufficient to establish
infringement under the doctrine of equivalents.
    Reviewing the record in the light most favorable to
WCM, we conclude that WCM provided sufficient evi-
dence for a reasonable jury to have found that the lugs
limitation of the claimed nut element was met by equiva-
lents. Accordingly, it is not clear that the jury reached a
“seriously erroneous result” and, therefore, the district
court erred in granting IPS’s motion for judgment as a
matter of law. Williams, 132 F.3d at 1131.
WCM INDUSTRIES, INC.   v. IPS CORPORATION                17



                              II
                              A
    IPS appeals the district court’s denial of judgment as
a matter of law that IPS does not indirectly infringe as to
its Revised Product. IPS’s sole argument on appeal is
that it cannot indirectly infringe as to this product line
because the district court granted judgment as a matter of
law of no infringement under the doctrine of equivalents
and WCM failed to prove any other underlying direct
infringement. Because we reverse the district court’s
grant of judgment as a matter of law of no infringement
under the doctrine of equivalents, we affirm the district
court’s denial of judgment as a matter of law of no indirect
infringement with respect to the Revised Product.
                              B
   IPS also appeals the district court’s denial of judg-
ment as a matter of law of no willfulness. As discussed
above, we review, under Sixth Circuit law, the grant or
denial of judgment as a matter of law de novo. Barnes,
401 F.3d at 736. Again, we view the evidence in the light
most favorable to WCM, and WCM must be given the
benefit of all reasonable inferences. Id.
    The jury here was instructed on the old Seagate
standard for subjective willfulness, and found that WCM
proved, by clear and convincing evidence, that IPS’s
infringement was willful. Before the Supreme Court’s
decision in Halo, this court’s two-part Seagate test re-
quired a patentee to prove both an objective and a subjec-
tive prong to establish willfulness. Halo Elecs., Inc. v.
Pulse Elecs., Inc., 136 S. Ct. 1923, 1930 (2016). The
subjective prong required a showing “that the risk of
infringement ‘was either known or so obvious that it
should have been known to the accused infringer.’” Id.
(quoting In re Seagate Tech., LLC, 497 F.3d 1360, 1371
(Fed. Cir. 2007) (en banc)).
18                 WCM INDUSTRIES, INC.   v. IPS CORPORATION



    While the Court rejected Seagate’s requirement that a
patentee prove objective recklessness in every case, Halo
did not disturb the substantive standard for the second
prong of Seagate, subjective willfulness. WesternGeco
L.L.C. v. ION Geophysical Corp., 837 F.3d 1358, 1362
(Fed. Cir. 2016), cert. granted on other grounds No. 16-
1011, 2018 WL 386561 (Jan. 12, 2018). “Rather, Halo
emphasized that subjective willfulness alone . . . can
support an award of enhanced damages.” Id.; see also
Halo, 136 S. Ct. at 1933 (“The subjective willfulness of a
patent infringer, intentional or knowing, may warrant
enhanced damages, without regard to whether his in-
fringement was objectively reckless.”). Halo also rejected
the Seagate test’s clear-and-convincing standard of proof
and held that this inquiry should be governed by the less
demanding preponderance of the evidence standard. 136
S. Ct. at 1934.
    The district court, in denying IPS’s motion for judg-
ment as a matter of law of no willfulness, concluded that
sufficient evidence supported the jury’s verdict that WCM
proved the subjective Seagate prong by clear-and-
convincing evidence. On appeal under the new Halo
standard, we must determine whether the evidence, when
viewed in the light most favorable to WCM, was sufficient
to prove by a preponderance of the evidence that IPS
acted despite a risk of infringement that was either
known or so obvious that it should have been known to
IPS. See Arctic Cat Inc. v. Bombardier Recreational
Prods. Inc., 876 F.3d 1350, 1371 (Fed. Cir. 2017).
    IPS’s principal argument on appeal is that the district
court erred in refusing to grant judgment as a matter of
law of no willfulness because there is no evidence that IPS
had knowledge of the patents before the lawsuit began.
In support, IPS largely relies on State Industries, Inc. v.
A.O. Smith Corp., 751 F.2d 1226 (Fed. Cir. 1985), and
Gustafson, Inc. v. Intersystems Industrial Products, Inc.,
897 F.2d 508 (Fed. Cir. 1990). In State Industries, the
WCM INDUSTRIES, INC.   v. IPS CORPORATION                 19



court concluded that “[t]o willfully infringe a patent, the
patent must exist and one must have knowledge of it.”
751 F.2d at 1236. Accordingly, the court held that the
defendant’s infringement in that case was not willful
because, among other reasons, its first notice of the exist-
ence of the issued patent came with the filing of the
infringement suit against it. Id. Similarly, Gustafson
held that “a party cannot be found to have ‘willfully’
infringed a patent of which the party had no knowledge.”
897 F.2d at 511.
    We find IPS’s arguments unpersuasive. First, this
court has already held that State Industries does not
establish a per se rule, as IPS contends, but rather, “is in
harmony with our prior and subsequent case law, which
looks to the ‘totality of the circumstances presented in the
case.’” Shiley, Inc. v. Bentley Labs., Inc., 794 F.2d 1561,
1568 (Fed. Cir. 1986) (quoting Cent. Soya Co. v. Geo. A.
Hormel & Co., 723 F.2d 1573, 1577 (Fed. Cir. 1983)). The
Gustafson opinion itself also recognizes that “[w]hether an
act is ‘willful’ is by definition a question of the actor’s
intent, the answer to which must be inferred from all the
circumstances.” 897 F.2d at 510–11 (emphasis added).
Second, unlike in State Industries and Gustafson, here
WCM provided sufficient evidence for a reasonable jury to
conclude that IPS did know of WCM’s patents as they
issued, if not earlier. 4 Not to mention, it is undisputed



    4   IPS argues that knowledge of a pending patent
application cannot support a finding of willfulness. The
cases that IPS points to, however, were all decided prior
to the enactment of 35 U.S.C. § 122(b)(1)(A) in 1999,
which provides for the publication of patent applications
filed on or after November 29, 2000, eighteen months
after the effective filing date of the application. See Hyatt
v. U.S. Patent & Trademark Office, 797 F.3d 1374, 1378
n.2 (Fed. Cir. 2015). For example, State Industries
20                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



that IPS had knowledge of the ’220 patent and the ’970
patent at least as of the date the first Colorado suit was
filed, about a month before this action was initiated.
     In support of the jury’s verdict, WCM points to the ev-
idence of record. First, although Mr. Casella, President of
IPS’s Plumbing Division, knew that AB&A did not employ
engineers or full-time product developers to create the
Classic Product, he did not conduct an investigation into
how AB&A developed the Classic Product during the due-
diligence period of the acquisition. Additionally, IPS was
aware of a 2010 patent lawsuit between WCM and AB&A
at the time of the acquisition. Mr. Humber, IPS’s employ-
ee, testified that he had monitored WCM’s products for
decades and possessed catalogs and other literature
indicating that WCM’s products were marked with “pa-
tent pending.” 5
    WCM also introduced evidence of what it refers to as
“a culture of copying at IPS,” including testimony from


stressed that the defendant was in “the dark about State’s
patent application prosecution activity” and that “[w]hat
the scope of claims in patents that do issue will be is
something totally unforeseeable.” 751 F.2d at 1236. Of
course, these concerns are no longer valid when patent
applications and real-time prosecution activity are pub-
lished. It is no longer the case that all “[p]atent applica-
tions are secret.” Gustafson, 897 F.2d at 511. Because we
conclude that WCM provided sufficient evidence for a
reasonable jury to conclude that IPS did know of WCM’s
patents at least when they issued, which was before the
lawsuit was initiated as to the ’220 patent and the ’970
patent, we need not decide whether the cases cited by IPS
still support its argument.
     5   WCM also refers to other evidence of record that
has been deemed confidential information by a protective
order.
WCM INDUSTRIES, INC.   v. IPS CORPORATION                21



Mr. Kirk, former IPS Product Manager, regarding an
email copying Gary Clarke, IPS’s Vice-President of Mar-
keting and Engineering, in which Mr. Kirk asked
Mr. Humber about one of WCM’s Watco drains. WCM
provided evidence at trial that Mr. Ball had meticulously
devised WCM’s Innovator Product and that a rational
explanation for the Classic Products’ identical measure-
ments and compatibility with WCM’s Innovator Product
was that AB&A had copied the Innovator.
    In sum, WCM argues that the jury had more than
enough evidence to conclude that IPS knew of WCM’s
patents as they issued (if not earlier) and that the risk of
infringement was known to IPS or so obvious that it
should have been known. IPS continues to dispute sever-
al of these facts and what inferences might be drawn from
them. For example, IPS points to Mr. Casella’s testimony
that IPS did not have any notice of WCM’s asserted bath
waste and overflow patents. The jury was free to decide,
however, whose evidence it found more compelling on the
question of willfulness and it found in WCM’s favor.
Georgetown Rail Equip. Co. v. Holland L.P., 867 F.3d
1229, 1245 (Fed. Cir. 2017). “We will not disturb that
finding here, where substantial evidence supports the
jury’s conclusions.” Id.
    Reviewing the record in the light most favorable to
WCM, we conclude that WCM provided sufficient evi-
dence for a reasonable jury to have found that IPS’s
infringement was willful. Accordingly, it is not clear that
the jury reached a “seriously erroneous result” and,
therefore, we affirm the district court’s denial of IPS’s
motion for judgment as a matter of law. Williams, 132
F.3d at 1131.
                              C
    Finally, IPS appeals the district court’s grant of
WCM’s motion for enhanced damages and the district
court’s decision to treble damages pursuant to § 284. We
22                   WCM INDUSTRIES, INC.   v. IPS CORPORATION



review a district court’s decision to enhance damages on
appeal for abuse of discretion. Halo, 136 S. Ct. at 1934.
Such a decision cannot stand if “the determination was
based on an erroneous conclusion of law, clearly erroneous
factual findings, or a clear error of judgment amounting to
an abuse of discretion.” Rite-Hite Corp. v. Kelley Co., 56
F.3d 1538, 1543 (Fed. Cir. 1995) (en banc).
    Although district courts enjoy discretion in deciding
whether to award enhanced damages, and in what
amount, “the channel of discretion [is] narrow[]” and
damages are generally reserved for egregious cases of
culpable behavior. Halo, 136 S. Ct. at 1932.
      Awards of enhanced damages . . . are not to be
      meted out in a typical infringement case, but are
      instead designed as a “punitive” or “vindictive”
      sanction for egregious infringement behavior. The
      sort of conduct warranting enhanced damages has
      been variously described in our cases as willful,
      wanton, malicious, bad-faith, deliberate, con-
      sciously    wrongful,      flagrant, or—indeed—
      characteristic of a pirate.
Id.
    Moreover, there is no requirement that enhanced
damages must follow a finding of egregious misconduct.
Id. at 1933. “As with any exercise of discretion, courts
should continue to take into account the particular cir-
cumstances of each case in deciding whether to award
damages, and in what amount.” Id. at 1933–34.
    Because a finding of willful infringement does not
command the enhancement of damages, the Read factors,
although not mandatory, do assist the trial court in
evaluating the degree of the infringer’s culpability and in
determining whether to exercise its discretion to award
enhanced damages at all, and if so, by how much the
damages should be increased. Read Corp., 970 F.2d at
WCM INDUSTRIES, INC.   v. IPS CORPORATION                 23



828; see Presidio Components, Inc. v. Am. Tech. Ceramics
Corp., 875 F.3d 1369, 1382–83 (Fed. Cir. 2017) (explain-
ing that an explicit discussion of the Read factors is not
mandatory).
    The district court here analyzed the Read factors, but
for many of the factors, the court’s analysis was either
non-existent or incorrect. We address each factor in turn.
    The first factor is “whether the infringer deliberately
copied the ideas of another.” Read Corp., 970 F.2d at 827.
The district court concluded that this factor weighed in
favor of enhancing damages because there was evidence of
copying on IPS’s part. In particular, the district court
cited to testimony from Mr. Kirk, former IPS Product
Manager, regarding an email copying Gary Clarke, IPS’s
Vice-President of Marketing and Engineering, in which
Mr. Kirk asked Mr. Humber about one of WCM’s Watco
drains. That product, however, was not WCM’s Innovator
product in this suit. Therefore, while there is evidence of
a possible “culture of copying” at IPS that weighs in favor
of enhancement, given that the email does not refer to a
product involved in the litigation, this factor should not be
weighed very strongly in favor of enhancing damages.
    The second factor is “whether the infringer, when he
knew of the other’s patent protection, investigated the
scope of the patent and formed a good-faith belief that it
was invalid or that it was not infringed.” Id. The district
court found that this factor was “perhaps most im-
portant[]” and that IPS’s failure to investigate the assert-
ed patents weighed strongly in favor of enhancing
damages. J.A. 38. The evidence that the court cited in
support of its conclusion, however, involves patents or
products not at issue in this case. For example, the court
cited to evidence that IPS knew that WCM’s products in
general were patent protected and that IPS did not inves-
tigate certain patents involved in a different lawsuit.
Thus, based on the record before the district court, this
24                  WCM INDUSTRIES, INC.   v. IPS CORPORATION



factor only slightly favors enhancing damages. The
evidence certainly cannot support the district court’s
conclusion that this factor was the most important and
that it weighed strongly in favor of enhancing damages.
     The third factor is “the infringer’s behavior as a party
to the litigation.” Read Corp., 970 F.2d at 827. The court
found that IPS did not engage in litigation misconduct
and properly determined that this factor counseled
against enhancement. The fourth and fifth factors are the
“[d]efendant’s size and financial condition” and the
“[c]loseness of the case.” Id. Despite IPS’s arguments to
the contrary on appeal, the district court’s analysis of
these factors is also reasonable. The district court deter-
mined that IPS’s size and financial condition weigh in
favor of enhanced damages and that the closeness of the
case was also in WCM’s favor because the jury verdict was
not a close call and the evidence strongly supported
WCM’s case.
     The court did not analyze the sixth factor, which is
the “[d]uration of the defendant’s misconduct.” Id. This
factor would likely weigh against enhancement. For
example, the patents issued only a short time before the
filing of the lawsuit. Nor did the court analyze the sev-
enth factor, “[r]emedial action by the defendant,” which
may also weigh slightly against enhancement because IPS
attempted to take remedial action (albeit ineffectively)
when it modified its Classic Product and began selling its
Revised Product during the pendency of this litigation.
See id. (citing Intra Corp. v. Hamar Laser Instruments,
Inc., 662 F. Supp. 1420, 1439 (E.D. Mich. 1987), aff’d, 862
F.2d 320 (Fed. Cir. 1988) (damages only doubled because
defendant “voluntarily ceased manufacture and sale of
infringing systems during the pendency of this litiga-
tion”)).
    In sum, the district court clearly erred when it con-
cluded that the second factor weighed strongly in favor of
WCM INDUSTRIES, INC.   v. IPS CORPORATION                25



enhancement. Compounding this error, the district court
did not appropriately weigh the third factor and other
potentially mitigating factors, such as the sixth and the
seventh factors, against the enhancement of damages. As
WCM itself stated to the district court, when only a subset
of factors weigh in favor of enhanced damages a court
should award less than treble damages. Accordingly, we
conclude that the district court made a clear error of
judgment amounting to an abuse of discretion in deciding
to award the maximum amount of damages.
    Although the district court “may increase the damag-
es up to three times the amount found or assessed,” 35
U.S.C. § 284 (emphases added), where the maximum
amount is imposed, “the court’s assessment of the level of
culpability must be high,” Read Corp., 970 F.2d at 828.
The district court is also particularly obligated to explain
the basis for the award where it awards treble damages.
Id. Here, the district court provided only a single conclu-
sory sentence as to why it was awarding the maximum
amount. J.A. 41 (“The Court further finds, based on the
egregious nature of IPS’s conduct, that treble damages
are appropriate.”). We therefore vacate the district court’s
decision to award treble damages and remand for the
district court to reconsider, consistent with this opinion,
the amount by which the damages should be enhanced, if
at all. 6




   6    Although the jury was not asked to decide the to-
tal number of infringing units sold by IPS on a product-
by-product basis, on remand, in determining how much
the damages should be increased, if at all, the district
court may also consider whether the degree of the IPS’s
culpability might be different for sales of the Classic
Product as compared to sales of the Revised Product.
26                   WCM INDUSTRIES, INC.   v. IPS CORPORATION



                        CONCLUSION
     Reviewing the record in the light most favorable to
WCM, we conclude that WCM provided sufficient evi-
dence for a reasonable jury to have found infringement
under the doctrine of equivalents as to IPS’s Revised
Product and to have found that IPS’s infringement was
willful. We therefore reverse the district court’s grant of
IPS’s motion for judgment as a matter of law as to no
infringement under the doctrine of equivalents and affirm
the district court’s denial of IPS’s motion for judgment as
a matter of law as to no willfulness. Because we reverse
the district court’s grant of judgment as a matter of law of
no infringement under the doctrine of equivalents, we
affirm the district court’s denial of judgment as a matter
of law of no indirect infringement with respect to the
Revised Product. Finally, we vacate the district court’s
award of maximum enhanced damages and remand.
     REVERSED-IN-PART, AFFIRMED-IN-PART,
       VACATED-IN-PART, AND REMANDED
                           COSTS
     The parties shall bear their own costs.
