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In Part 1 of this article, we discussed the background of section 298 of the America Invents Act (AIA) and noted that this section of the AIA only applies to patents issued on or after Sept. 16, 2012. With respect to induced infringement, most patents asserted today issued prior to Sept. 16, 2012, and therefore the court is required to follow the 2008 Broadcom decision of the Court of Appeals for the Federal Circuit rather than Section 298. With respect to charges of willfulness, Section 298 of the AIA only affects the determination of willfulness and not, should willfulness be found, whether enhanced damages should be awarded.

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