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What Are The Remedies For Patent Infringement?

by Terrifio Team | August 10, 2023

What Are The Remedies For Patent Infringement?

When it comes to patent infringement, understanding the available remedies is crucial for patent holders seeking to protect their rights and seek appropriate recourse. Patent infringement occurs when someone uses, makes, or sells a patented invention without the authorization of the patent owner. In such cases, the legal system provides various remedies to address the infringement and ensure that the patent holder’s rights are upheld.

This article aims to explore the remedies available for patent infringement, shedding light on the options that patent holders can pursue in response to an infringement. By understanding these remedies, patent holders can make informed decisions and take appropriate action to enforce their rights.

Patent infringement remedies include seeking an injunction to halt the infringing activities, and pursuing damages or an account of profits to compensate for the harm caused. The award of costs may also be applicable to cover legal expenses incurred during the litigation process. Furthermore, other remedies may exist depending on the specific circumstances of the case.

This article aims to provide patent holders with an outline to assist with gaining knowledge and understanding of how to navigate infringement disputes effectively. By knowing their rights and the available options, patent holders may take the appropriate steps to protect their intellectual property, enforce their patents, and seek just remedies for any infringement that may occur.

Patent Infringement Overview

Patent infringement arises when someone violates the exclusive rights granted to a patent holder. It occurs when an individual or entity, without permission, makes, uses, sells, or imports a patented invention, or contributes to or induces such activity. 

When a patent is infringed, the patent holder has several remedies available to address the violation and protect their interests.

The remedies for patent infringement are designed to provide relief and restore the patent holder’s rights. These remedies aim to both compensate the patent holder for the harm caused by the infringement and prevent further unauthorized use of the patented invention.

The remedies for patent infringement typically include:

  • Injunction:

    An injunction is a court order that prohibits the infringer from continuing their infringing activities. It is a powerful tool to halt the unauthorized use or sale of the patented invention.

  • Damages or Accounting of Profits:

    Damages are monetary awards intended to compensate the patent holder for the losses incurred due to the infringement. An Accounting of profits, on the other hand, involves the infringer surrendering their profits gained from the unauthorized use of the patented invention.

  • Award of Costs:

    The court may award costs to the prevailing party in a patent infringement case, covering legal expenses and litigation costs incurred during the proceedings.

These are some of the primary remedies available for patent infringement, but there may be other remedies specific to each jurisdiction. It is important for patent holders to consult with intellectual property attorneys to understand the remedies available in their particular jurisdiction and determine the best course of action to protect their patent rights.


An injunction is a powerful remedy available to patent holders in cases of infringement. It is a court order that prohibits the infringing party from continuing their unauthorized use, manufacture, sale, or importation of the patented invention. The purpose of an injunction is to immediately stop the infringement and prevent any further harm to the patent holder’s rights.

Obtaining an injunction requires the patent holder to demonstrate the likelihood of success on the merits of their infringement claim and the potential for irreparable harm if the injunction is not granted. The court carefully considers factors such as the validity of the patent, the extent of the infringement, the potential impact on the patent holder’s market position, and the balance of convenience between the parties.

An injunction can be temporary, also known as a preliminary injunction or interim injunction, granted at the early stages of litigation to maintain the status quo until a final decision is reached. It can also be permanent, known as a permanent injunction, issued as part of the final judgment in a patent infringement case.

The impact of an injunction is significant. It can effectively halt the infringing activities, forcing the infringer to cease production, sales, or use of the patented invention. Violation of an injunction can result in severe penalties, including contempt of court and monetary sanctions.

It is important to note that obtaining an injunction is not automatic. Courts carefully assess the circumstances of each case and exercise their discretion to determine whether an injunction is appropriate. Factors such as the public interest, the availability of alternative remedies, and the potential harm to the infringer are taken into account.

Injunctions are one of the key remedies sought by patent holders to protect their intellectual property rights. By securing an injunction, patent holders can safeguard their market exclusivity, preserve their competitive advantage, and enforce their patent rights effectively.

Damages or Accounting of Profits

When it comes to addressing patent infringement, one of the key remedies available to patent holders is the award of damages or account of profits. These remedies aim to provide financial compensation for the harm caused by the infringement and to restore the patent holder to the position they would have been in if the infringement had not occurred.

Damages refer to the monetary compensation awarded to the patent holder as a result of the infringement. The calculation of damages takes into account various factors, including the actual loss suffered by the patent holder due to the infringement, the profits that the infringing party has made from the unauthorized use of the patented invention, and any reasonable royalties that would have been negotiated between the parties.

In determining damages, courts consider a range of factors, such as the extent of the infringement, the market value of the patented invention, the impact on the patent holder’s market position, and the duration of the infringement. It’s worth noting that the calculation of damages can vary depending on the jurisdiction and the specific circumstances of the case.

Account of profits, on the other hand, involves the infringing party surrendering the profits they have made as a result of the infringement. This remedy aims to prevent the infringer from benefiting financially from their unauthorized use of the patented invention.

Generally, damages are determined over a period of time (the “damages window”)  which can depend on the nature of the patent claims under consideration, which define the patent monopoly.  For U.S. patent claims which cover a product, damages are determined from a date that the patent owner sent a notification, known as a cease and desist letter, a date known as actual notice.  However, an under-utlizied strategy known as virtual patent marking, can significantly increase the damages window and thus considerably enhance the damages calculation. By properly managing a virtual patent marking program which complies with 35 USC 287a patent holders can extend the damages window back into the past up to six  years. This strategy allows U.S. patent owners to claim damages over a considerably longer period, thereby increasing the potential compensation they may receive.

Thus, virtual patent marking can maximize the extent of the applicable damages period thus potentially significantly increasing damages associated with the infringement in an ordinary patent infringement case.  This may be even more significant in a US ‘willful’ infringement case, where the statute allows the base damages to be multiplied by the court up to three-times, under the appropriately offensive infringement circumstances. 

In summary, the availability of damages or account of profits as remedies for patent infringement provides patent holders with an opportunity to seek financial redress for the harm caused by the infringement. By understanding the calculation methods and by utilizing virtual patent marking, U.S. patent holders can potentially maximize their damages, as well as other settlement leverage that virtual patent marking can provide for them. 

Award of Costs

In patent infringement cases, the award of costs is an important aspect that parties involved should consider. When a patent infringement lawsuit is filed and litigated, there are various costs incurred throughout the legal process. These costs can include attorney fees, court fees, expert witness fees, and other expenses related to the litigation.

The award of costs refers to the court’s decision on which party is responsible for paying these costs. Generally, the prevailing party, i.e., the party that successfully proves patent infringement, may be entitled to recover its reasonable costs from the infringing party. This can provide a level of compensation and reimbursement for the expenses incurred in enforcing patent rights.

The award of costs serves as an additional remedy in patent infringement cases and can help offset the financial burden faced by the prevailing party. It incentivizes parties to diligently pursue and defend their patent rights, knowing that they may be reimbursed for the costs associated with the litigation process.

It’s important to note that the specific rules and guidelines for the award of costs may vary depending on the jurisdiction and the applicable laws. Courts consider factors such as the complexity of the case, the conduct of the parties, and the reasonableness of the costs incurred when making their determination.

In conclusion, the award of costs is a significant remedy in patent infringement cases that can provide financial relief to the prevailing party. It helps promote fairness and encourages parties to protect their patent rights. If you find yourself involved in a patent infringement dispute, it’s crucial to consult with a qualified intellectual property attorney who can guide you through the legal process and help you understand the potential costs and remedies available to you.

Other Remedies

In addition to the commonly known remedies for patent infringement, such as injunctions, damages,, and the award of costs, there are other remedies available to address patent infringement. These remedies can vary depending on the jurisdiction and the specific circumstances of the case.

One such remedy is the possibility of seeking declaratory relief. This remedy allows a party to initiate legal proceedings to obtain a court declaration regarding the validity or non-infringement of a patent. It provides a proactive approach for parties seeking clarity on their rights and can help resolve potential disputes before they escalate into full-blown infringement cases.

Furthermore, alternative dispute resolution methods, such as mediation or arbitration, can be considered as remedies for patent infringement. These processes offer parties the opportunity to resolve their disputes outside of traditional litigation, providing a more flexible and cost-effective means of reaching a resolution. In such cases, virtual patent marking can be an effective strategy to increase settlement leverage. By utilizing virtual patent marking, which involves marking patented products or services with a website address that provides public notice of the patent, patent holders can establish constructive notice and demonstrate their commitment to protecting their intellectual property rights. This can enhance their negotiation position and increase the likelihood of favorable settlement outcomes.

It’s important to consult with a qualified intellectual property attorney to understand the specific remedies available in your jurisdiction and the appropriate course of action based on your circumstances. They can provide guidance on the most effective strategies to protect your patent rights and seek appropriate remedies for infringement.

In conclusion, while injunctions, damages, and the other well-known remedies play a crucial role in patent infringement cases, there are additional remedies available that can address unique situations or provide alternative means of dispute resolution. Virtual patent marking offers a strategic advantage in settlement negotiations, reinforcing the patent holder’s position and increasing the likelihood of favorable outcomes. Understanding the full range of remedies is essential for effectively protecting patent rights and ensuring fair resolution in cases of infringement.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your patent professional on any specific questions you may have.