Chapter §20.12 Time Limitation on Damages Recovery

• Jurisdiction: United States

§20.12 Time Limitation on Damages Recovery

[A] Statutory Basis: 35 U.S.C. §286

Unlike its copyright counterpart,¹²⁷² U.S. patent law does not recognize a general statute of limitations in the sense of a statutory provision that bars the maintenance of an infringement suit following a delay in filing the suit for a certain number of years after the patentee had notice of the alleged infringing activity.¹²⁷³ However, the Patent Act does provide a practical limitation on the time period in which infringement actions seeking the remedy of damages can be brought:

§286. Time Limitation on Damages

Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.

. . . . ¹²⁷⁴

[B] Six Year Pre-Filing Period

Section 286 provides that in an infringement action seeking damages (e.g., based on theories of lost profits and/or reasonable royalties),¹²⁷⁵ the patent owner's damages recovery period extends retroactively to, at most, six years before the action was filed. This means that even if infringement was ongoing for ten years prior to the filing of suit, the patentee can recover only the most recent six years of infringement damages accrued prior to the filing of the lawsuit. If the patent expired more...