Historical Perspectives on Reasonable Royalty Patent Damages and Current Congressional Efforts for Reform


The award of reasonable royalty damages for patentees successful in a patent infringement suit has had a long road in its development, resulting in its current manifestation under 35 U.S.C. § 284. As history has shown, the treatment of compensable damages to patentees ranged from the automatic trebling of the actual damages suffered, to placing the onus of proving the loss suffered on the shoulders of the plaintiff patentee. By tracing the roots of this remedy back to the original Patent Act of 1790, this article seeks to examine the growth in popularity of this award from its early versions, to its modern day equivalents. By looking at both the statutory changes, and the subsequent judicial interpretations of the statute, this article hopes to shed light on the history and rationale behind use of the reasonable royalty to compensate patentees for infringement of their patents.

Additionally, in light of the context behind the failure of the much ballyhooed Patent Reform Act of 2007, this article seeks to explore the concerns and criticisms many parties had about the proposed damages provisions in this legislation. By analyzing the problems and shortcomings of that proposal, this article will provide guidance as to areas of which future proposals must include in order to maximize their chances of success and to bring the damages statute within long held historical lines.

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