Remedies for Patent Infringement

What patent infringement remedies are available when someone violates your patent rights?  What happens when someone infringes your patent rights?  Can you sue them?  Can you get money?  Can you stop them?  Yes, in some cases.

One of the main benefits of a patent is the ability to exclude others.  A patent gives the owner the right to stop someone from infringing upon their patent rights.  However determining what you are entitled to when someone violates your patent, is very difficult.

Patent law is a balance between encouraging an inventor to invent and allowing society to grow.  Protecting the investment of time, cost and ingenuity which an inventor contributes to create an invention inthe inventor to a reward for the inventor to invent.  to get a promoting growth of our society by allowing others to use these inventions after the patents expire.  Patent law is the preferred mechanism for protecting and enforcing rights related to an invention, although contracts can also be crafted which also protect an inventor in certain situations.

Generally, patent law allows a patent owner to enforce it patent rights by stopping any infringing use and obtain payment for any damages suffered by the unauthorized use of the patented invention.  Typically, the court will stop the infringement through an injunction though a court order which can be a preliminary or permanent injunction depending on the stage of the litigation.  In addition, patent law also allows patent owners to collect money for any losses suffered as a result of the unauthorized use by the infringer.

In order to obtain patent infringement remedies, a federal lawsuit must be filed in federal court. Alternatively, the parties can agree to settle their dispute through arbitration.  When the infringing goods come from outside the U.S., the International Trade Commission (ITC) may be utilized to resolve the dispute.  However, no compensation for past infringement or attorney’s fees are available in an ITC proceeding.

The patent owner may sue to recover monetary damages. When trying to determine the amount of money to award, the court will typically look towards the amount of cash necessary to restore the patent owner to the same financial position he or she would have been in had the infringer violated the patent owner’s rights. The three traditional modes of measuring compensatory damages are lost profits, established royalty, and reasonable royalty.

  • Lost profits, in the form of sales diversion, price erosion, or increased expense, are an appropriate basis for recovery when the patent owner or an exclusive licensee exploits the lawful exclusive rights of the patent directly by manufacture, use, or sale.
  • If the owner chooses to exploit the patent through offering licenses at an established royalty rate, that rate is the appropriate basis for recovery.
  • Absent sufficient evidence of lost profits or an established royalty, the patent owner may in any case recover against the infringer not less than a reasonable royalty. A reasonable royalty is the royalty that willing parties would have agreed to had they negotiated a license under the patent.

To preserve the ability to get the greatest amount for any infringement, the patent owner should ensure proper notice is placed on any product covered by the patent.  For example, notice is given when the patent owner marks each patented product with the designation “patented,” or the abbreviation “pat.,” followed by the patent number. Such notice should be applied to the patented article or articles made by a patented process.

If this is not possible, labels bearing the notice should be applied to the packaging for the articles. In the absence of this marking, actual notice of the specific patent must be given to an infringer, and damages can then only be obtained for infringements after notice.

If you have any questions or need assistance in determining the appropriate patent infringement remedy,  contact one of our patent attorneys today at 913-345-0090.

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