Remedies: Damages, Injunctions, Enhanced Damages, and Fees

Common situations.

• A competitor that lost sales asks whether it can recover its lost profits.
• A patent owner that does not make products asks whether it can get an injunction.
• A defendant found to infringe one feature of a complex product asks how damages are measured.
• A defendant that beat a weak suit asks whether it can recover its fees.

Compensatory damages.

The court awards damages adequate to compensate for the infringement, but in no event less than a reasonable royalty, together with interest and costs (35 U.S.C. § 284).

Lost profits. A patent owner that competes with the infringer may recover profits it would have made but for the infringement. A common test asks whether there was demand for the patented product, an absence of acceptable noninfringing substitutes, capacity to meet the demand, and a measurable amount of lost profit (Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978)). Lost profits must be reasonably foreseeable (Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995) (en banc)).

Reasonable royalty. Most awards are royalties, measured by the result of a hypothetical negotiation between a willing licensor and licensee just before infringement began. Courts and experts often consider the fifteen factors listed in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970), along with licenses for comparable technology. The royalty can be a running rate or a lump sum.

Apportionment. Damages must reflect the value of the patented feature, not the unpatented features of the product. A royalty may be based on the value of the entire product only if the patented feature drives demand for the whole product (LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012)). Rules of thumb not tied to the facts, such as a 25 percent starting royalty, are not admissible (Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)). Opinions built on comparable licenses must be tied to what those licenses actually show (EcoFactor, Inc. v. Google LLC, No. 2023-1101 (Fed. Cir. May 21, 2025) (en banc)).

Limits on the damages period. No damages for infringement more than six years before suit (§ 286), and none before actual notice if the patent owner's products were not marked (§ 287(a)). See Other Defenses and Limits on Recovery.

Design patents. A design patent owner may instead recover the infringer's total profit on the article of manufacture to which the design was applied (§ 289), which may be a component (Samsung Elecs. Co. v. Apple Inc., 580 U.S. 53 (2016)).

Interest. Prejudgment interest is ordinarily awarded to make the patent owner whole (Gen. Motors Corp. v. Devex Corp., 461 U.S. 648 (1983)). Post-judgment interest runs at the federal statutory rate (28 U.S.C. § 1961).

Injunctions.

A court may grant an injunction on terms it considers reasonable (35 U.S.C. § 283). There is no automatic injunction. The patent owner must show irreparable injury, that money damages are inadequate, that the balance of hardships favors relief, and that the public interest would not be disserved (eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)). Direct competitors are much more likely to obtain injunctions than patent owners that only license. Where an injunction is denied, the court may award an ongoing royalty for future infringement (Paice LLC v. Toyota Motor Corp., 504 F.3d 1293 (Fed. Cir. 2007)). Exclusion orders at the ITC follow different rules. See Where Patent Cases Are Heard.

Enhanced damages for willful infringement.

The court may increase damages up to three times (§ 284). Enhancement is reserved for egregious misconduct beyond typical infringement, such as deliberate copying, and is left to the judge's discretion (Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016)). Courts often consider factors such as copying, the infringer's good-faith investigation, litigation conduct, size, duration, and remedial action (Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992)). The infringer's knowledge is judged at the time of its conduct. Not obtaining an opinion of counsel cannot be used to prove willfulness (§ 298).

Attorney's fees.

The court may award reasonable attorney's fees to the prevailing party in exceptional cases (§ 285). A case is exceptional if it stands out from others in the strength of a party's position or the unreasonable way it was litigated, judged on the totality of the circumstances (Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014)). Fees are available to prevailing defendants as well as patent owners.

Texas notes.

• Texas juries return many of the largest patent damages awards in the country. See Patent Trials.
• Large Texas awards are not always final. In 2025 the Federal Circuit ordered new damages trials in EcoFactor (tried in the Western District) and Optis (tried in the Eastern District).

Sources.

• 35 U.S.C. §§ 283, 284, 285, 286, 287, 289, 298.
• 28 U.S.C. § 1961.
• Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978).
• Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995) (en banc).
• Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970).
• LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012).
• Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011).
• EcoFactor, Inc. v. Google LLC, No. 2023-1101 (Fed. Cir. May 21, 2025) (en banc).
• Samsung Elecs. Co. v. Apple Inc., 580 U.S. 53 (2016).
• Gen. Motors Corp. v. Devex Corp., 461 U.S. 648 (1983).
• eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
• Paice LLC v. Toyota Motor Corp., 504 F.3d 1293 (Fed. Cir. 2007).
• Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016).
• Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992).
• Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014).

This guide is general information, not legal advice. Law checked through October 20, 2026. See the Disclaimer.