As of October 31, 2013, the Project on Commercializing Innovation is no longer active.
The Project is succeeded by the Hoover IP² Working Group on Intellectual Property, Innovation, and Prosperity. Hoover IP²

Chapter Ten – Remedies

Several remedies are available to patentees, including injunctions, compensatory damages, enhanced damages, and attorney’s fees.  The recent eBay and Seagate cases signaled substantial changes in this area of the law, and injunctions, enhanced damages, and attorney’s fees are now more difficult for patentees to obtain than they were historically.  The full impact of the eBay case is not yet known, however, and the district courts and the Federal Circuit continue to determine the contours of the law.



  1. The Federal Circuit has recently pushed back somewhat against the post-eBay trend away from injunctions.  In Douglas Dynamics v. Buyers Products Co.(Fed. Cir., May 21, 2013) and Aria Diagnostics, Inc. v.Sequenom, Inc. (Fed. Cir., Aug. 9, 2013) the court reversed the district courts’ denial of an injunction.  Because the decision to grant or deny an injunction is reviewed for abuse of discretion, both of these cases represent a firm signal that, although injunctions in patent cases are subject to the traditional four-factor equitable test, patents are still a property right that is often properly enforced via an injunction.  In Aria Diagnostics the court emphasized the need for factual findings rather than assumptions when employing the four-factor test.  Also see Broadcom Corp. v. Emulex Corp., (Fed. Cir. Oct. 7, 2013).
  2. Following the issuance of a permanent injunction, a patentee can bring a contempt motion if it believes the infringer has continued to infringe with a product or process that is not more than colorably different from the infringing product or process.  InnCube Corp. v. SeaChange Int’l, Inc., (Fed. Cir. Oct. 10, 2013) the Federal Circuit affirmed the district court’s holding that the infringer’s new product, intended to design around the patent, was more than colorably different from the original.


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