Chapter 19

Patent Infringement Damages*

Ronen AradMike P. ArnoldChristopher C. BarryVincent E. O'Brien

19.1 Patents

Article I, Section 8 of the Constitution of the United States reads, “Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The current operative law relating to patents passed by Congress is Title 35 of the United States Code (U.S.C.). Title 35 provides that patentees or their licensees are the sole persons allowed to make, use, or sell the invention in the United States. Thus, the ownership of a patent can impart a potential economic benefit that the owner can exploit by either selling a product that incorporates the patented invention, keeping others from selling a product with the patented invention, or licensing the patent to someone else who wants to exploit it. Inventors can obtain patents on products, processes, and software algorithms and designs, but they cannot patent ideas.

Compensation to the patentee for infringement of any patent can take the form of lost profits or reasonable royalty damages. Compensation for infringement of a design patent can also include damages for unjust enrichment. A plaintiff can receive interest on these three types of damages and receive punitive damages if the court finds that the infringement was willful.1 Punitive damages take the form of a multiple of the other damages proven. ...

Get Litigation Services Handbook: The Role of the Financial Expert, 5th Edition now with O’Reilly online learning.

O’Reilly members experience live online training, plus books, videos, and digital content from 200+ publishers.