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Effective: November 29, 2000 United States Code Annotated

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Effective: November 29, 2000 United States Code Annotated 35 U.S.C.A. § 284 Page 1 Effective: November 29, 2000 United States Code Annotated Currentness Title 35. Patents (Refs & Annos) Part III. Patents and Protection of Patent Rights Chapter 29. Remedies for Infringement of Patent, and Other Actions (Refs & Annos) § 284. Damages Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the in- fringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, to- gether 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) of this title. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances. CREDIT(S) (July 19, 1952, c. 950, 66 Stat. 813; Nov. 29, 1999, Pub.L. 106-113, Div. B, § 1000(a)(9) [Title IV, § 4507(9)], 113 Stat. 1536, 1501A-566.) HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1952 Acts. Based on Title 35, U.S.C., 1946 ed., §§ 67 and 70, part (R.S. 4919 [derived from Act July 8, 1870, c. 230, § 59, 16 Stat. 207]; R.S. 4921 [derived from Act Jul 8, 1870, c. 230, § 55, 16 Stat. 206], amended (1) Mar. 3, 1897, c. 391, § 6, 29 Stat. 694, (2) Feb. 18, 1922, c. 58, § 8, 42 Stat. 392, (3) Aug. 1, 1946, c. 726, § 1, 60 Stat. 778). The section consolidates the provisions relating to damages in R.S. 4919 and 4921 with some changes in lan- guage. 1999 Acts. Statement by President, see 1999 U.S. Code Cong. and Adm. News, p. 290. Amendments © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 35 U.S.C.A. § 284 Page 2 1999 Amendments. Pub.L. 106-113 [§ 4507(9)] added at the end of the second undesignated paragraph the fol- lowing: “Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title.” Effective and Applicability Provisions 1999 Acts. Amendment by Pub.L. 106-113, Div. B, § 1000(a)(9) [Title IV, § 4507(9)], effective Nov. 29, 2000, and applicable to all applications filed on or after that date (including international applications designating the United States); patents resulting from an international application filed before November 29, 2000 and applica- tions published pursuant to 35 U.S.C.A 122(b) or Article 21(2) of the treaty defined in 35 U.S.C.A § 351(a) res- ulting from an international application filed before November 29, 2000 shall not be effective as prior art as of the filing date of the international application, but such patents shall be effective as prior art in accordance with 35 U.S.C.A. § 102(e) in effect on November 28, 2000, and all applications complying with 35 U.S.C.A. § 371 that resulted from international applications filed on or after that date, see Pub.L. 106-113, Div. B, § 1000(a)(9) [Title IV, § 4508], as amended, set out as a note under 35 U.S.C.A. § 10. CROSS REFERENCES Action for infringement of patent, see 35 USCA § 281. Attorney fees awarded in action for-- Copyright infringement, see 17 USCA § 505. Patent infringement, see 35 USCA § 285. Costs of previously dismissed action, see Fed.Rules Civ.Proc. Rule 41, 28 USCA. Damages in copyright infringement action, see 17 USCA § 504. Deductions for damages sustained as result of patent infringement, see 26 USCA § 186. Effect of rule 54 on former § 67 of this title, see Fed.Rules Civ.Proc. Rule 54, 28 USCA. Fees and allowances to witnesses, see 28 USCA § 1821 et seq. Judgment and costs, see Fed.Rules Civ.Proc. Rule 54, 28 USCA. Offer of judgment, see Fed.Rules Civ.Proc. Rule 68, 28 USCA. Taxation of costs, generally, see 28 USCA § 1920 et seq. Uruguay Round Agreements contents and term of patent and remedies, see 35 USCA § 154. LAW REVIEW COMMENTARIES Arbitration of patent disputes: An important option in the age of information technology. Note, 4 Ford- ham Intell.Prop.Media & Ent.L.J. 599 (1993). At the end of the second rainbow. N. Richard Powers, 7 Del.Law. 18 (1989). Compiled legislative history of 35 U.S.C. 284: The patent compensation statute. Vincent P. Tassinari, 31 UWLA L.Rev. 45 (2000). Federal circuit: A case study in specialized courts. Rochelle Cooper Dreyfuss, 64 N.Y.U.L.Rev. 1 (1989). Grain Processing and Crystal Semiconductor: Use of economic methods in damage calculations will ac- curately compensate for patent infringement. Liane M. Peterson, 13 Fed. Circuit B.J. 41 (2003). How to avoid increased damages and attorneys' fees: The duties of the accused infringer and the patent © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 35 U.S.C.A. § 284 Page 3 owner. Kirk M. Hartung, 20 J.Marshall L.Rev. 433 (1987). Intellectual property rights in software--A look at the basics. David R. Syrowik, 65 Mich.B.J. 292 (1986). Law and economics of patent infringement damages. Mark A. Glick, 10 Utah B.J. 11 (March 1997). Let the games begin: Incentives to innovation in the new economy of Intellectual Property law. Amy L. Landers, 46 Santa Clara L. Rev. 307 (2006). Patent infringement and future lost profits damages. Christopher D. Marchese, 26 Ariz.St.L.J. 747 (1994). Patent law developments in the United States Court of Appeals for the Federal Circuit during 1986. Douglas R. Strawbridge, Daniel W. McDonald, and R. Carl Moy, 36 Am.U.L.Rev. 861 (1987). Quiet revolution in patents. Alfred J. Mangels, 43 J.Mo.B. 545 (1987). Reasonable royalty damages and the ambitious patentee Georgia-Pacific revisited. Jerald E. Rosenblum, 78 J.Pat. & Trademark Off.Soc'y 581 (1996). Recent developments in patent law--decisions by the U.S. Court of Appeals for the Federal Circuit. Gale R. Peterson and Derrick A. Pizarro, 11 Tex. Intell. Prop. L.J. 483 (2003). Research tool patents: Judicial remedies. Donald R. Ware, 30 AIPLA Q.J. 267 (2002). Rite-Hite Corp. v. Kelley Co.: Federal Circuit awards damages for harm done to a patient not in suit. 27 Loy.U.Chi.L.J. 665 (1996). Software Patent Institute and the challenge of software-related patents. David R. Syrowik and Roland J. Cole, 73 Mich.B.J. 544 (1994). The market share rule with price erosion: Patent infringement lost profits damages after Crystal. Roy J. Epstein, 31 AIPLA Q.J. 1 (2003). Understanding and addressing the unfair dilemma created by the doctrine of willful patent infringement. William F. Lee and Lawrence P. Cogswell, III, 41 Hous. L. Rev. 393 (2004). LIBRARY REFERENCES American Digest System Patents 275, 318, 319. Key Number System Topic No. 291. RESEARCH REFERENCES ALR Library 27 ALR, Fed. 2nd Series 151, Construction and Application of Patent Act--United States Supreme Court Cases. © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 35 U.S.C.A. § 284 Page 4 97 ALR, Fed. 694, Jurisdiction of United States Court of Appeals for Federal Circuit Under 28 U.S.C.A. §§ 1292 and 1295. 91 ALR, Fed. 839, Interest on Award of Damages and Profits for Federal Copyright Infringement. 79 ALR, Fed. 532, Propriety of Ordering Separate Trials as to Liability and Damages, Under Rule 42(B) of Fed- eral Rules of Civil Procedure, in Actions Involving Patents and Copyrights. 66 ALR, Fed. 186, Factors to be Considered in Determining a “Reasonable Royalty” for Purposes of Calculating Damages for Patent Infringement Under 35 U.S.C.A. § 284. 59 ALR, Fed. 154, Willful and Deliberate Infringement as Rendering Patent Case “Exceptional” for Purposes of 35 U.S.C.A. § 285, Providing that in Exceptional Cases Court May Award Reasonable Attorneys' Fees to Pre- vailing... 41 ALR, Fed. 959, Interlocutory Appeals in Patent Cases Under 28 U.S.C.A. § 1292(A)(4). 35 ALR, Fed. 551, Laches as Defense in Patent Infringement Suit. 18 ALR, Fed. 690, Right to Jury Trial in Patent Infringement Action in Federal Court. 9 ALR 5th 63, Right to Prejudgment Interest on Punitive or Multiple Damages Awards. 6 ALR 5th 883, Release of One Joint Tortfeasor as Discharging Liability of Others Under Uniform Contribution Among Tortfeasors Act and Other Statutes Expressly Governing Effect of Release. 16 ALR 4th 11, Liability Insurance Coverage as Extending to Liability for Punitive or Exemplary Damages. 22 ALR 3rd 563, Power of Federal Courts of Appeals to Transfer Cases Between Circuits. 66 ALR 2nd 606, Assignability of Licensee's Rights Under Patent Licensing Contract. 134 ALR 1225, Comment Note.--Release of One of Two or More Presons Whose Independent Tortious Acts Combine to Produce an Injury as Releasing Other or Others. 91 ALR 884, Motion for Summary Judgment as Searching Record. © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 35 U.S.C.A. § 284 Page 5 87 ALR 1205, Declaration of Rights or Declaratory Judgments. 52 ALR 197, Interest on Claim for Legal Services. Encyclopedias 26 Am. Jur. Proof of Facts 3d 119, Lost Profits Resulting from Tortious Injury to Business. 64 Am. Jur. Proof of Facts 3d 1, Proof of Patentability and Nonpatentability of Method of Electronic Commerce. 84 Am. Jur. Proof of Facts 3d 243, Establishing Liability for Infringement of a Utility Patent.
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