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Remedies in U.S. Patent Law

Table of contents
Chapter One. Injunctive Relief
1.1 - Permanent Injunctions
1.2 - Preliminary Injunctions
1.2.1 - Problems on Injunctions
1.3 - ITC Exclusion Orders
Chapter Two. Damages
2.1 - Lost Profits
2.1.1 - Problem on Lost Profits
2.2 - Reasonable Royalties
2.3 - Extraterritoriality
2.3.1 - Problems on Lost Profits, Reasonable Royalties, and Extraterritoriality
2.4 - Ongoing Royalties
2.5 - Defendant’s Profits
2.6 - Attorneys’ Fees
2.7 - Enhanced Damages
2.7.1 - Problem on Enhanced Damages and Attorneys' Fees
2.8 - Pre- and postjudgment Interest
2.9 - Patent Marking
Chapter Three. Declaratory Judgments
3.1 - Background and Problem 9
3.2 - Declaratory Judgments: MedImmune and Beyond
Remedies in U.S. Patent Law
1st Edition
Thomas Cotter
©Thomas Cotter. Subject to CC BY-NC-SA 4.0 License
Table Of Contents
  • Introduction
  • Chapter One - Injunctive Relief
    • 1.1 - Permanent Injunctions
    • 1.2 - Preliminary Injunctions
      • 1.2.1 - Problems on Injunctions
    • 1.3 - ITC Exclusion Orders
  • Chapter Two - Damages
    • 2.1 - Lost Profits
      • 2.1.1 - Problem on Lost Profits
    • 2.2 - Reasonable Royalties
    • 2.3 - Extraterritoriality
      • 2.3.1 - Problems on Lost Profits, Reasonable Royalties, and Extraterritoriality
    • 2.4 - Ongoing Royalties
    • 2.5 - Defendant’s Profits
    • 2.6 - Attorneys’ Fees
    • 2.7 - Enhanced Damages
      • 2.7.1 - Problem on Enhanced Damages and Attorneys' Fees
    • 2.8 - Pre- and postjudgment Interest
    • 2.9 - Patent Marking
  • Chapter Three - Declaratory Judgments
    • 3.1 - Background and Problem 9
    • 3.2 - Declaratory Judgments: MedImmune and Beyond
Introduction

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Remedies

If the patent owner prevails at trial in an action for patent infringement, what relief is she entitled to? In answering this question, three provisions of the U.S. Patent Act are particularly relevant. First, § 283 states that “[t]he several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems equitable.” Second, § 284 states that “[u]pon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less that a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.” Third, § 285 states that “[t]he court in exceptional circumstances may award reasonable attorney fees to the prevailing party.” As we shall see, several other statutory provisions (some of them within, some of them outside the Patent Act) also can play a role in determining what relief the patent owner is entitled to in certain specific circumstances. As we also will see, sometimes it is the accused infringer who is entitled to relief, for example an award of attorneys’ fees or a declaratory judgment of noninfringement or invalidity.

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