35 U.S.C. · Part III · Chapter 29, Remedies for infringement of patent, and other actions

35 U.S.C. 284: Damages

In plain English

A patent owner who wins on infringement is entitled to damages adequate to compensate for the infringement, and never less than a reasonable royalty for the infringer's use of the invention, together with interest and costs. The two main measures are lost profits, where the patentee shows it would have made the infringer's sales, and a reasonable royalty, usually framed as the result of a hypothetical negotiation between the parties just before infringement began. Courts often analyze that negotiation using the factors listed in Georgia-Pacific Corp. v. United States Plywood Corp. (S.D.N.Y. 1970).

The second paragraph allows the court to increase damages up to three times the amount found or assessed. Enhanced damages are reserved for egregious misconduct, typically willful infringement, and the decision is left to the district court's discretion. They are not available for provisional rights under section 154(d).

The third paragraph lets the court receive expert testimony on damages and on what royalty would be reasonable. In practice almost every damages case turns on competing expert opinions.

Annotation by Raj Sutariya, Co-founder, PatentAssist.ai. General information, not legal advice; the statute below governs.

Text of 35 U.S.C. 284

Current text, quoted from the official United States Code.

Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than 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).
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.

Key cases

Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978). To recover lost profits a patentee can show demand for the patented product, absence of acceptable noninfringing substitutes, manufacturing and marketing capacity to meet the demand, and the profit it would have made.
Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016). Rejected the rigid two-part Seagate test. District courts have discretion to enhance damages in egregious cases of culpable infringement, proved by a preponderance of the evidence, and the infringer's subjective willfulness can be enough.
WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018). A patentee who proves infringement under section 271(f)(2) can recover lost foreign profits under section 284, because the conduct the statute focuses on, supplying components from the US, is domestic.

Practical notes

Damages start only when the patentee can recover them: no earlier than 6 years before the complaint (section 286), and for patented products only after marking or actual notice (section 287). A patent owner who sells a product should mark it from launch.

After Halo, accused infringers who learn of a patent should document a good-faith basis for continuing, such as a reasoned opinion of counsel on noninfringement or invalidity. Section 298 provides that failing to obtain or present an opinion cannot be used to prove willfulness or intent to induce, but a well-founded opinion is still useful evidence.

Design patents have an additional remedy. Under section 289 the owner can recover the infringer's total profit on the article of manufacture to which the design was applied, which can exceed a royalty-based award.

Related rules and guidance

37 CFR: No USPTO rules implement this section; it is applied by the courts.
MPEP: Not covered by the MPEP, which deals with examination.