Patent infringement is the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining the owner's permission by contract, license or waiver. There are several remedies available to patent owners in the event of infringement. These remedies include monetary relief, equitable relief, and costs and attorney's fees.
Monetary relief, in the form of compensatory damages, is available to remedy patent infringement:
- Compensatory damages - A patent owner may recover lost profits for infringement once they have established the value of the patent
- Increased damages - Up to three times the compensatory damages can be recovered in cases of willful or deliberate infringement
- Time period for damages ' Rights to damages can be claimed only after the date the patent was issued and extends back only 6 years from filing of the infringement claim
Injunctions are orders issued by a court ordering someone to do something or prohibiting some act. Injunctions are available in two forms:
- Preliminary injunctions -Court orders made in the early stages of a lawsuit or petitions which prohibit the parties from doing an act which is in dispute (e.g. manufacturing patented product)
- Permanent injunctions -Final orders of a court that a person or entity discontinue doing certain activities permanently or take certain actions
Preliminary injunctive relief is granted if the patent owner can demonstrate a high probability of winning the case and a permanent injury sustained in the absence of injunctive relief. The patent owner must also make a "clear showing" of validity, including:
- Prior judicial ruling(s) regarding patent validity
- Long-standing acceptance of validity by others within the industry
- If the patent's validity is clearly shown by its technical framework
Unless contrary to pubic interest, permanent injunctive relief is commonly awarded to the prevailing patent owner.
Costs and Attorneys' Fees
Costs are typically recoverable and, in rare cases where there has been willful infringement, so are attorneys' fees.
Should I Consult a Lawyer about my Patent Issues?
The remedies and resolutions for patent issues are detailed and complex. An intellectual property attorney can help you choose the remedy that works best for your particular needs. A lawyer can also participate in on-going research to make certain no one else is using your patent without your permission. Additionally, in cases of patent infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core issues of your case.