In order to encourage the advancement of science and technology, the federal government gives an incentive to inventors to disclose new ideas that have been embodied in inventions by granting a patent, a temporary right to exclude others from making, using, selling, offering to sell, or importing the patented invention without the inventor’s permission. Activity that encroaches upon the right given by a patent is said to infringe the patent, for which an inventor may bring a lawsuit in order to obtain a remedy.
One common remedy for patent infringement is an injunction, a court order that the infringing activity stop. The other type of remedy available for patent infringement is monetary compensation for economic losses experienced by the inventor because of the infringement of the patent. The patent statute specifically provides that monetary damages should be no less than a reasonable royalty for the use of the patented invention. In addition, if the infringing activity is found to be willful, three times the actual economic losses experienced by the inventor can be awarded.
Most defenses to patent infringement address the question of whether there has in fact been infringement. However, even when liability for patent infringement has been established, a patent infringement defense is available to reduce or eliminate the monetary compensation that a patent owner can be awarded. The patent statute specifically provides that if a patent owner fails to mark the patented invention with the word “patent” or the abbreviation “pat.” along with the patent number, monetary compensation may not be recovered by the patent owner unless it can be established that the alleged infringer was notified of the alleged infringement and continued the allegedly infringing activity. If the patented product is not marked with the patent information, the notification requirement exists even if the alleged infringer knew of the existence of the patent.
A patent owner is not required to mark the patented product, and there are other methods by which one can be notified of allegedly infringing activity. A patent owner may send an alleged infringer a “cease and desist” notice. In addition, the filing of a patent lawsuit constitutes notice. Damages can only be recovered for infringing activity that continues beyond the date that notice of infringement is given. If the alleged infringer ceases the infringing activity immediately upon notification by a cease and desist letter or service of a lawsuit where there was no marking of the patented product, there would be no liability for damages despite the fact that there had been infringement. In contrast, the marking of the product constitutes notification as of possession of the product, and an infringer would be liable for monetary compensation for any infringing activity involving the product from the time of its possession by the infringer.