An injunction is an order by the court that prevents the accused infringer from engaging in infringing activity (or allegedly infringing activity in the case of a preliminary injunction). An injunction can last for the remaining term of an unexpired patent.
Prior to the Supreme Court’s decision in eBay Inc v. MercExchange, L.L.C., 547 U.S. 388 (2006), courts would routinely issue permanent injunctions upon a finding of infringement. However, eBay indicated that the issuance of an injunction should not be essentially automatic upon a finding of infringement. A patent owner must establish on balance:
1. That it has suffered irreparable injury
2. That it has no other adequate remedies at law
3. That the harm that it is suffering is outweighed by the harm that the accused infringer is suffering
4. That the public interest is served by the issuance of an injunction
A patent owner may also be entitled to monetary damages. Damages are measured by two methods: 1the determination of lost profits (upper estimate) and the determination of a reasonable royalty (lower estimate). The court may also award the patentee an intermediate sum between the upper estimate and the lower estimate.
A patent owner may also be entitled to an award of the lost profits associated with “convoyed sales” for unpatented products that are sold with the patented product. A court may also award enhanced damages in certain cases, usually cases in which there is willful infringement. The court can enhance damages by as much as a factor of three.
A court may also award attorney’s fees in cases of willful infringement by defendants, inequitable conduct by plaintiffs or litigation misconduct by either party. A court may also award pre-judgment interest.