This Article fills that gap by analyzing six years of district court decisions courts—three years before and after Seagate—on willful patent infringement and enhanced damages. Surprisingly, it determines that willful infringement was found in only about ten percent fewer cases after Seagate. In addition, after Seagate, juries find willful infringement substantially more often than judges at trial. However, enhanced damages are awarded less frequently and in lower amounts when juries find willfulness compared to judges.

Finally, this Article evaluates the impact of several common factors on willful infringement decisions after Seagate. Based on the empirical data collected in this study, the existence of a "substantial" or “legitimate” defense to infringement is the strongest predictor of a finding of no willfulness after Seagate, while evidence of copying by the accused infringer was the strongest predictor of willfulness. In contrast, the remaining factors studied—opinions of counsel, attempts to design around the patent, reexamination at the PTO, and bifurcation of willfulness from liability at trial—had no statistically significant effect on willfulness decisions.

A revised bailout system is likely the best approach for placing Section 5 on a more solid footing. To date, however, bailout has been little used; despite predictions made during the previous renewal of Section 5 in 1982, only a handful of the thousands of covered jurisdictions have sought and successfully obtained bailout. This article suggests that Congress should consider two major changes to the existing bailout system. First, Congress should implement an "automatic" bailout that would unilaterally remove from coverage all jurisdictions that have not violated the major provisions of the Voting Rights Act since the 1982 renewal. Second, the current requirements for obtaining bailout—which this Article calls "optional" bailout—should be revised to make it easier for jurisdictions to determine whether they are eligible. Adopting these changes will more narrowly tailor Section 5 to apply to jurisdictions with a recent history of discrimination in voting, and thus make it more likely to survive constitutional scrutiny the next time the issue is before the Court.

This Article proposes a more manageable alternative to Georgia-Pacific when an acceptable noninfringing substitute for the patented technology exists. Specifically, in a hypothetical bargain for a patent license, both economic and negotiation theory explain that a rational patent licensor would agree to pay only the costs it would incur to adopt and implement a noninfringing substitute technology, plus any lost benefits related to the substitute’s use. Indeed, the Federal Circuit already has recognized an analogous limitation on damages in the context of lost profits, although it has defined the universe of alternatives too narrowly by refusing to consider imperfect substitutes for the patented technology.

The United States Supreme Court determined in a 5-4 decision, Reno v. Bossier Parish School Board, 528 U.S. 230 (2000), that Section 5's prohibition on the enforcement of electoral changes which have a discriminatory purpose does not apply to electoral changes that were not intended to “retrogress,” or make worse, the *276 position of minority voters. This interpretation upset a long-standing consensus among executive, legislative, and judicial actors that Section 5 prohibited all changes enacted with an unconstitutional discriminatory purpose, not just those which made minority voters worse off. This Article explains how the Bossier majority dramatically transformed Section 5 and demonstrates, through an empirical analysis of the Justice Department's Section 5 objection letters, how it significantly weakened the statute's ability to protect minority voting rights. It concludes by arguing that Congress should amend Section 5 in 2007 to supersede the Bossier decision.