Knowledge of an existing patent is only 1 factor of 9 when determining whether to award treble damages. All 9 factors are: 1. whether copying was deliberate 2

Knowledge of an existing patent is only 1 factor of 9 when determining whether to award treble damages. All 9 factors are: 1. whether copying was deliberate 2. whether upon notice infringer did good faith investigation (upon notice, did you see if you really were infringing) 3. infringer's behavior as a party to the litigation (did your lawyers place nice in pleadings and motions) 4. infringer's size and financial condition (big guy vs. little guy?) 5. closeness of the case (if the case could go either way, no treble damages) 6. duration of infringer's conduct 7. remedial action by the infringer (when notified of infringement, did you develop a non-infringing work around) 8. infringer's motivation for harm 9. whether infringer attempted to conceal misconduct The court weighs all of these to determine whether to enforce treble damages. They are not weighed equally, and you don't have to fail a certain number. You have 2 ways you can go. First, you can just build the idea and see what happens. Don't research whether you are infringing, and just take it as you are working in the same area as someone else. Or you can read the actual patent and see what is claimed. Engineer around that, and around extensions of that patent that a person of ordinary skill in the art would consider obvious.