Post– Halo, courts have dismissed willfulness infringement claims where, as here, the defendant has had "reasonable arguments as to why its conduct was non-infringing." Move, Inc. v. Real Estate All. Ltd., 221 F.Supp.3d 1149, 1173 (C.D. Cal. 2016) (appeal pending); see also Trs. of Bos. Univ. v. Everlight Elecs. Co., 212 F.Supp.3d 254, 256–57 (D. Mass. 2016) (appeal pending).Finally, plaintiffs contend that defendant knew about its infringing activities long before 2009, the year in which defendant responded that it believed that it was not infringing. Such knowledge of infringement does not, however, rise to a level of willfulness.

The Court finds that, based on the totality of the circumstances, U.S. Bank did not engage in egregious misconduct. See Presidio II, 875 F.3d at 1382-83 (noting that, under Halo, "the district court is not required to discuss the Read factors," and need only "consider the particular circumstances of the case to determine whether it is egregious"); Trustees of Boston Univ. v. Everlight Elec. Co., Ltd., 212 F. Supp. 3d 254, 257 (D. Mass. 2016) ("While the Read factors remain helpful to this Court's analysis, the touchstone for awarding enhanced damages after Halo is egregiousness."). First, although litigation misconduct can be considered on the question of enhanced damages, such misconduct is more relevant to a motion for attorney's fees. It is a lesser consideration in determining whether U.S. Bank's infringement was "egregious."

D. Del. 2016) (granting summary judgment where the patentee did not present evidence "that could show that the [defendants'] infringement was 'egregious,' 'deliberate,' 'wanton,' or otherwise characteristic of the type of infringement that warrants the Court in exercising its discretion to impose the 'punitive' sanction of enhanced damages"); Presidio Components v. Am. Tech. Ceramics, 2016 U.S. Dist. LEXIS 110212, *73 (S.D.Cal. Aug. 17, 2016), aff'd, 875 F.3d 1369, 1382-83 (Fed. Cir. 2017) (declining to enhance damages after jury finding of willful infringement based on determination that the case "was a 'garden-variety' hard-fought patent infringement action between two competitors" in which the defendant "developed noninfringement and invalidity theories that were supported by expert reports," "filed motions for summary judgment on several issues," and "succeeded in causing [the plaintiff] to substantively narrow the scope of the asserted claims in reexamination proceedings ... ."); Trs. of Bos. Univ. v. Everlight Elecs. Co., 212 F.Supp.3d 254, 258 (D. Mass. 2016) (declining to enhance damages after jury finding of willful infringement where the accused infringers did not, among other things, "deliberately copy" or "try to conceal [the infringing products]"). Kolcraft's failure to seek a preliminary injunction undercuts its claim for willful infringement based on the accused infringer's post-filing conduct.

D. Del. 2016) (granting summary judgment where the patentee did not present evidence "that could show that the [defendants'] infringement was 'egregious,' 'deliberate,' 'wanton,' or otherwise characteristic of the type of infringement that warrants the Court in exercising its discretion to impose the 'punitive' sanction of enhanced damages"); Presidio Components v. Am. Tech. Ceramics, 2016 U.S. Dist. LEXIS 110212, *73 (S.D.Cal. Aug. 17, 2016), aff'd, 875 F.3d 1369, 1382-83 (Fed. Cir. 2017) (declining to enhance damages after jury finding of willful infringement based on determination that the case "was a 'garden-variety' hard-fought patent infringement action between two competitors" in which the defendant "developed noninfringement and invalidity theories that were supported by expert reports," "filed motions for summary judgment on several issues," and "succeeded in causing [the plaintiff] to substantively narrow the scope of the asserted claims in reexamination proceedings ... ."); Trs. of Bos. Univ. v. Everlight Elecs. Co., 212 F.Supp.3d 254, 258 (D. Mass. 2016) (declining to enhance damages after jury finding of willful infringement where the accused infringers did not, among other things, "deliberately copy" or "try to conceal [the infringing products]"). Kolcraft's failure to seek a preliminary injunction undercuts its claim for willful infringement based on the accused infringer's post-filing conduct.

But the Supreme Court and Federal Circuit have cautioned that there is no required set of factors to consider. So while those factors may be helpful in some cases (and I do consider them here), they are not dispositive. SeeSociedad Espanola de Electromedicina y Calidad, S.A. v. Blue Ridge X–Ray Co, Inc. , 226 F.Supp.3d 520, 532 (W.D.N.C. 2016) (declining to apply the Read factors as a dispositive test for enhanced damages); see alsoTrustees of Boston Univ. v. Everlight Electronics Co. , 212 F.Supp.3d 254, 257 (D. Mass. 2016) ("[T]he touchstone for awarding enhanced damages after Halo is egregiousness.")Id.

(quoting Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992) ) ). Although the various factors set forth in Read Corp. may be useful to help determine whether an award of enhanced damages is warranted, the Supreme Court has cautioned that "there is no precise rule or formula for awarding damages under § 284[.]" Halo, 136 S.Ct. at 1932 (citation omitted); see also Trustees of Boston Univ. v. Everlight Elec. Co., Ltd., 212 F.Supp.3d 254, 257, 2016 WL 3976617, at *2 (D. Mass. 2016) ("[T]he touchstone for awarding enhanced damages after Halo is egregiousness.").