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Patent Litigation Remedies Toolkit
Practical Law Toolkit w-034-0670 (Approx. 9 pages)
Patent Litigation Remedies Toolkit
by Practical Law Intellectual Property & Technology
| Maintained • USA (National/Federal) |
Resources to help patent litigation counsel understand, evaluate, and litigate remedies in a patent infringement case.
Understanding the remedies available in patent infringement cases is crucial to both patent holders' and accused infringers' counsel at every litigation phase.
The two remedies available on a successful patent infringement claim are:
- Injunctions. Injunctions are less common than damages. A court may award preliminary and permanent injunctive relief only after evaluating whether monetary damages are inadequate to compensate for the injury, where the balance of hardships lies, and the injunction's impact on the public interest (eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
- Damages. A court must award damages that are adequate to compensate for the infringement, typically calculated based on:
- a reasonable royalty, which is the minimum damages that may be awarded (35 U.S.C. § 284), and which represents the amount that a reasonable patent holder and accused infringer would agree to in a hypothetical, arms-length license negotiation conducted just before infringement began; or
- lost profits, which generally compensate the patent holder for lost sales or price erosion resulting from a competitor's infringing products or processes.
In extraordinary cases, a court may also award enhanced damages up to three times the compensatory damages or reasonable attorney fees, or both (35 U.S.C. §§ 284, 285). Enhanced damages awards typically involve a finding of willful patent infringement.
This Toolkit provides resources to help counsel understand, evaluate, and litigate remedies in patent infringement cases under the Patent Act. It does not cover remedies that may be available from:
- Federal courts in patent infringement litigation under the Hatch-Waxman Act (Pub. L. No. 98-417) (see Practice Note, Hatch-Waxman Act: Overview: Patent Litigation Under the Hatch-Waxman Act).
- The US International Trade Commission (ITC) under Section 337 of the Tariff Act (19 U.S.C. § 1337) (see Practice Note, ITC Section 337 Patent Investigations: Overview: Remedies).
- The US Court of Federal Claims in a lawsuit asserting patent infringement against the US or a federal agency (28 U.S.C. § 1498(a)).