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

35 U.S.C. 286: Time limitation on damages

In plain English

A patent owner cannot recover damages for infringement committed more than 6 years before the complaint or counterclaim for infringement was filed. Each act of infringement is counted separately, so the section works as a look-back window: a suit filed today reaches back 6 years, however long the infringement has been going on.

It is not a statute of limitations in the usual sense. It does not bar the suit itself, and an owner can sue on a patent whose infringement started long ago, recovering damages for the last 6 years and an injunction or ongoing royalty for the future. Provisional rights have their own limit: the action must be brought within 6 years after the patent issues (section 154(d)).

The second paragraph deals with claims against the United States for use of a patented invention. The time a written claim spends with the government agency before it is denied, up to 6 years, is not counted.

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

Text of 35 U.S.C. 286

Current text, quoted from the official United States Code.

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.
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referred to in the preceding paragraph.

Key cases

SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328 (2017). Laches cannot be used to bar a claim for damages for infringement that occurred within the 6-year period of section 286. Congress already set the time limit.

Practical notes

Delay still has costs. Every year a patent owner waits loses a year of damages at the back end, and patents expire. If you know of infringement, decide early whether to license, sue or let it go.

Equitable estoppel survives SCA Hygiene. A patent owner whose conduct led an infringer to believe it would not enforce the patent, with the infringer relying on that belief, can still lose the claim.

The look-back interacts with marking. For patented products, damages also require marking or actual notice under section 287, so an unmarked product may limit recovery to a period much shorter than 6 years.

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.