The patentee usually does not participate in the preparation of a complaint to a great extent. The role of a patentee usually consists of reviewing the complaint for factual errors. However, the patentee should consider the available remedies in deciding whether to go through with the lawsuit.
The most common remedies that a patentee may seek to obtain through litigation are damages, enhanced damages, a preliminary injunction, a permanent injunction or attorney’s fees.
Damages are usually limited to a reasonable royalty. In certain cases, however, a patentee may be awarded lost profits. In cases of willful infringement, the court may increase the damage award by up to a factor of three.
A patentee may also be entitled to an injunction. An injunction is a court order to cease engaging in infringing activity. Failure to obey an injunction may result in a finding of contempt.
Permanent injunctions are fairly common in patent cases, but preliminary injunctions are relatively rare. A preliminary injunction is issued sometime prior to entry of judgment. A preliminary injunction is often issued very early in a case. In fact, it is not uncommon for a party to file a motion for a preliminary injunction with the complaint.
A party may also be awarded attorney’s fees in exceptional cases. Exceptional cases usually involve willful infringement or litigation misconduct.