Chapter §20.01 Introduction

• Jurisdiction: United States

§20.01 Introduction

Patent infringement is a tort,¹ for which a patent owner may sue an accused infringer in a civil action.² Earlier chapters of this treatise addressed the substantive law of patent infringement³ and the defenses that may be raised thereto.⁴ This chapter concerns the types of relief that a successful patent owner may obtain if infringement is established and the patent's validity and enforceability are sustained.

To summarize, the available remedies for infringement of a valid, enforceable patent are:

• an injunction (preliminary and/or permanent) against future infringement,

• ongoing royalties for future infringement that is not enjoined,

• damages (compensatory and/or enhanced) for past infringements,

• attorney fees,

• costs, and

• prejudgment interest.

In addition, the American Inventors Protection Act of 1999 created a remedy for violation of a patentee's "provisional rights," which attach upon publication of its pending patent application.⁵ Each type of remedy is addressed below.

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Notes:

^[1] See Carbice Corp. v. American Patents Dev. Corp., 283 U.S. 27, 32 (1931) (stating that "infringement . . . , whether direct or contributory, is essentially a tort, and implies invasion of some right of the patentee").

^[2] See 35 U.S.C. §281 (2012) (providing that "[a] patentee shall have remedy by civil action for infringement of his patent"). The Patent Act does not provide any criminal liability for acts of patent infringement.

^[3] See supra Chapter 14 ("Analytical Framework for Patent Infringement"); Chapter 15 ("Patent Claim Interpretation"); Chapter 16 ("Comparing the Properly Interpreted Claims to the Accused Device"); Chapter 17 ("Indirect Infringement"); Chapter 18 ("Specialized Categories of Infringement").

^[4] See supra Chapter 19 ("Defenses to Patent Infringement").

^[5] See 35 U.S.C. §154(d).