As is the case with most creative endeavors, innovation often sires imitation. A patent grants their owner what is known as a “limited monopoly” by the government –i.e., the exclusive right to exclude others from making, using, selling, offering for sale or importing the patented invention. Typically, a party wishing to practice a patented invention must enter a licensing or purchase agreement with the patent owner in order to secure the right to do so; otherwise, they risk liability for infringement.
On the other hand, a patent owner may sometimes overestimate the scope of protection granted by their patent and allege infringement against a non-infringer.
Although it is good practice to resolve these issues without going to court in either instance, in the event patent infringement litigation becomes necessary, ELO zealously represents the interests of the client, to the fullest extent. ELO puts clients’ interests at the forefront in every aspect, aiming to achieve the best results for both the short and long term, at a reasonable expense.
There are several forms of remedies available to a patent owner who has successfully proven patent infringement. Such relief can include an injunction, protection from future infringement, compensation for past infringement, certain costs of litigation, and –in exceptional cases– attorney’s fees and treble damages.
The basic remedy for past infringement is the award of damages (35 U.S.C. § 284). While the law provides no maximum damages, it does provide a minimum, commensurate to the infringer’s gain from using the invention. Compensatory damages are designed to replace what the inventor has lost, and may cover reasonable royalties, or interest awards. The court may also increase damages up to three times –i.e. treble damages— for the willful, wanton infringement of the patent.
Alternative relief is available through the International Trade Commission (ITC) when the source of the infringing products is outside of the United States. The ITC may exclude from import any products that infringe a valid U.S. patent and cause injury to a domestic business. However, no compensation for past infringement or attorney’s fees is available in an ITC proceeding.
ELO strives to help clients enforce their IP rights, while still remaining mindful of their overall business objectives. Contact us for additional information or to schedule a consultation.
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