Patent Infringement Damages: What Inventors Need to Know
Learn how patent infringement damages work, from lost profits to reasonable royalty and triple damages. Book a free IP Strategy Call to protect your rights.
[SERVICE]Patent litigation
Patent litigation for patent owners and accused infringers
When a competitor copies your patented product, or a patent owner says you infringe theirs, we handle it from the first letter through federal court, the PTAB and the ITC.
Your attorneys
Andrew RapackeManaging Partner · Registered Patent AttorneyFormer Naval Engineering Officer. M.S. in electrical and electronics engineering.
[01]Who it's for
For companies with a patent at stake.
Patent disputes tend to arrive at a product launch, a funding round or an acquisition, when the stakes are highest. Early, accurate analysis of the claims decides most of what follows.
A competitor copied your patented product
A product that appears to use what your patent claims, sold or imported in the US.
You received an infringement letter
A demand to stop or to take a license, from a competitor or a patent assertion entity.
A patent stands in your way
A competitor's patent you believe should never have issued, and a route to challenge it.
Knockoffs are being imported
Infringing products made abroad and shipped into the US.
[02]Types of infringement
What counts as patent infringement, and what doesn't.
A patent gives its owner the right to stop others from making, using, offering to sell, selling or importing the claimed invention in the US during the patent's term. Infringement is judged claim by claim, element by element.
A granted patent is presumed valid, but an accused infringer can still prove it invalid, in court or at the PTAB. Most patent cases are fought on both questions at once.
Infringement
- Direct infringementMaking, using, offering to sell, selling or importing a product or process that meets every element of a claim.
- Doctrine of equivalentsA product that differs only in an insubstantial way, performing the same function in the same way with the same result.
- Induced infringementActively encouraging others to infringe, for example through instructions or marketing.
- Contributory infringementSelling a component especially made for an infringing use, with no substantial other use.
- Design patent infringementA design an ordinary observer would find substantially the same as the patented design.
Not infringement
- A design-aroundA product that leaves out at least one element of every claim, and is not an equivalent.
- Activity after the patent expiresOnce the term ends, anyone can make and sell the invention.
- Making and selling abroadUS patents cover the US. Foreign activity needs foreign patents.
- Copying an idea that was never claimedWhat the patent describes but does not claim is free to use.
[03]Where to fight
Federal court, the PTAB or the ITC.
Patent disputes are decided in three places, and many cases run in two of them at once. Each one decides different questions and offers different remedies.
| Federal district court | PTAB inter partes review | International Trade Commission | |
|---|---|---|---|
| What it decides | Infringement, validity and damages | Whether claims are unpatentable over earlier patents and publications | Whether imported products infringe |
| What it can order | Damages, an injunction, and fees in exceptional cases | Cancellation of claims. No damages | Exclusion of the products at the border, and cease and desist orders. No damages |
| To invalidate a claim | Clear and convincing evidence | A preponderance of the evidence | Clear and convincing evidence |
| Appeals | Federal Circuit | Federal Circuit | Federal Circuit |
State courts cannot hear patent infringement claims. A patent owner bringing an ITC case must also show a domestic industry in the patented product, through US investment in it.
[04]Remedies
What are the remedies for patent infringement?
The Patent Act lets a court award damages and, in some cases, stop the infringement. What a court actually orders depends on the evidence, and no lawyer can promise a result.
- Damages. Enough to compensate for the infringement, and never less than a reasonable royalty. Lost profits where the patent owner can prove them.
- Enhanced damages. Up to three times the damages, reserved for egregious, typically willful, infringement.
- Attorney fees. Only in exceptional cases, which can cut either way, against a patent owner who brings a baseless case too.
- Injunction. An order to stop. Not automatic. The court weighs whether money is enough and where the balance of hardships lies.
- Design patents. An infringer of a design patent can be liable for its total profit on the article of manufacture.
More on patent infringement damages.
[05]How we handle it
Claims read the way a court will read them.
Patent litigation is a fight over what the claims mean and what came before them. Our attorneys spend their days drafting and prosecuting patents and answering examiners, so we start every dispute with the claims, the prosecution history and the prior art.
In federal court
We prepare and file infringement complaints and the motions that follow, handle scheduling conferences and discovery, take depositions and work with expert witnesses, argue claim construction, bring and answer summary judgment motions, prepare for and try the case, and handle post-trial motions and appeals.
Before anyone sues
- Infringement analysis. Claim charts that show, element by element, whether a product infringes.
- Validity check. A search for prior art that could invalidate the claims, before you rely on them or worry about them.
- Marking and notice. Patent marking and notice letters that start the damages clock.
Our team includes Andrew Rapacke, a registered patent attorney admitted in the Southern and Northern Districts of Florida and the Eastern District of Texas, and registered patent attorneys from engineering and science backgrounds, including a former USPTO examiner.
[06]If you are accused
Received a patent infringement letter?
Don't ignore it, and don't stop selling on reflex. Many letters, especially from patent assertion entities, are written to start a negotiation. The first job is to compare the asserted claims with your product and check whether the patent is valid.
Your options
- Non-infringement. Show your product does not meet every element of the claims, as construed.
- Invalidity. Show the claims were anticipated or obvious over earlier art, or fail other requirements, in court or through an IPR.
- Design-around. Change the product so it no longer meets the claims, often the fastest business answer.
- License or settle. On terms that reflect the real strength of the patent.
- Declaratory judgment. When a dispute is real, ask a court to declare that you do not infringe or that the patent is invalid.
[07]PTAB
Inter partes review at the PTAB.
Inter partes review lets anyone other than the patent owner ask the Patent Trial and Appeal Board to cancel claims as anticipated or obvious over earlier patents and printed publications.
- Institution. The petition must show a reasonable likelihood of prevailing on at least one claim. The decision typically comes about six months after filing.
- Final written decision. Due within one year of institution, extendable by up to six months for good cause.
- Who decides institution. Since October 2025, the USPTO Director decides whether to institute each review, weighing discretionary factors, such as parallel litigation and how long the patent has been in force, alongside the merits.
- Stays. A court may pause a parallel infringement case while an instituted review runs.
For patent owners, the PTAB is where an asserted patent is most often tested. More on post-grant proceedings, who can use inter partes review and whether an IPR is worth it.
[08]Fees
Fees quoted after a case review.
Every patent case is different, so there is no list price. We review the facts and the documents first, then quote the fee for the work in front of you before any of it begins.
Book A Free Strategy CallWhat sets the cost
- Whether it is a letter, an IPR, an ITC case or a federal lawsuit
- How many patents, claims and products are involved
- Claim construction, technical experts and damages experts
- The court's schedule and how far the case goes before it resolves
Many disputes are settled with a demand letter or a negotiated agreement long before trial, and the quote reflects the stage you are at. Litigation is not covered by The RLG Guarantee.
[09]The process
From the first call to a resolution.
Patent cases move in stages, and most resolve before trial. Timing shown is typical, never a promised date.
Patent disputeReview to resolution
- Day one01Day oneCase review callFree. The patent, the product and what you want.
- First weeks02First weeksClaim chart and validityInfringement analysis and a prior art check.
- Early03EarlyLetter or responseA notice letter, or the answer to one.
- If needed04If neededFilingFederal court, the PTAB or the ITC, or your response.
- Months to years05Months to yearsClaim construction and discoveryMarkman hearing, experts and depositions.
- 06ResolutionA license, a settlement or a decision.
[10]How a case runs
What are the steps in a patent infringement lawsuit?
Patent cases are among the longest cases in federal court, and many take years to reach trial. Most settle, or are decided on motions, before a jury ever hears them.
- Pre-suit analysis. Claim charts comparing the product to each claim, a validity check and a marking review.
- Complaint and answer. Usually met with counterclaims of non-infringement and invalidity, and sometimes an IPR petition.
- Infringement and invalidity contentions. Each side sets out its theories, claim by claim.
- Claim construction. The judge decides what disputed claim terms mean at a Markman hearing, which often decides the case.
- Discovery and experts. Documents, source code, depositions, and technical and damages experts.
- Summary judgment, trial and post-trial motions. Then any appeal to the Federal Circuit.
[11]Venue
Where can a patent lawsuit be filed?
Only in federal court, and only in the right district. A patent infringement case can be brought where the defendant resides, which for a US corporation means its state of incorporation, or where it committed acts of infringement and has a regular and established place of business.
Venue shapes the judge, the local patent rules and the time to trial, so it is one of the first strategic questions in a case. An accused infringer who wants certainty sooner can sometimes file first, in a declaratory judgment action.
Download the free patent litigation guide for the full process, or see all our IP litigation services.
[12]Questions
Questions about patent litigation.
Holding a letter, or watching a competitor copy your product? Your first call is free and comes with a straight answer on where you stand.
Book A Free Strategy CallWhat is patent litigation?
A legal dispute over whether a patent is infringed, whether it is valid, or both. It is decided in federal district court, at the Patent Trial and Appeal Board or at the International Trade Commission, with appeals to the Federal Circuit.
What are the types of patent infringement?
Direct infringement, by making, using, offering to sell, selling or importing what a claim covers, either literally or under the doctrine of equivalents. Induced infringement, by encouraging others to infringe. Contributory infringement, by supplying a component especially made for an infringing use. Design patents are infringed by designs an ordinary observer would find substantially the same.
What are the penalties for patent infringement?
Damages of at least a reasonable royalty, or lost profits, up to three times that amount for egregious infringement, attorney fees in exceptional cases, and an injunction where the court finds money is not enough. For design patents, the infringer's total profit on the article. What a court awards depends on the evidence.
How long does a patent infringement lawsuit take?
Usually years if it goes to trial, depending on the court. Many cases end sooner, through settlement, an early ruling on claim construction, summary judgment, or a stay while an IPR runs.
What should I do if I receive a patent infringement letter?
Don't ignore it and don't respond with admissions. Have the asserted claims compared with your product and the patent checked for validity, and note the date. If you are later served with a complaint, the one-year clock for an IPR petition starts.
Can I challenge a patent that is asserted against me?
Yes. You can argue invalidity in court, or petition the PTAB for inter partes review on prior art patents and publications, where the burden of proof is lower. The petition must be filed within one year of being served with a complaint, and the USPTO Director now decides whether to institute each review.
What is an IPR?
Inter partes review, a trial at the Patent Trial and Appeal Board that can cancel patent claims as anticipated or obvious over earlier patents and printed publications. Anyone but the patent owner can file one.
Where can a patent lawsuit be filed?
Only in federal court, in a district where the defendant is incorporated, or where it has committed acts of infringement and has a regular and established place of business.
Do I need to mark my patented product?
To collect damages from before an infringer is notified, generally yes. Mark the product with the patent number, or with "patent" and a web address that lists it. Without marking, damages generally start only when the infringer receives actual notice or the lawsuit is filed.
Can I stop knockoffs being imported into the US?
Often, through the International Trade Commission, which can order infringing imports excluded at the border. It awards no damages, and the patent owner must show a domestic industry in the patented product.
How much does patent litigation cost?
It depends on the forum, the number of patents and products, and how far the case goes. A letter or an IPR costs far less than a jury trial. We quote the fee after a case review and before any work begins. Litigation is not covered by The RLG Guarantee.
[13]Learning Center
Go deeper on patent disputes.
Who Can Use Inter Partes Review?
Ever since its introduction in 2012 with the enactment of the America Invents Act, Inter Partes Review (IPR) petitions have been a popular alternative, or tangential…
IPR Can Be Expensive, But Can Be Worth It
One of the most daunting aspects of an Inter Partes Review (IPR) proceeding at the Patent Trial and Appeal Board (PTAB) is the high cost. But the cost of an IPR often…
[14]Client reviews
What clients say about working with us.
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