Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d).
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.
(July 19, 1952, ch. 950, 66 Stat. 813; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4507(9)], Nov. 29, 1999, 113 Stat. 1536, 1501A–566; Pub. L. 112–29, § 20(j), Sept. 16, 2011, 125 Stat. 335.)
Historical and Revision NotesBased on Title 35, U.S.C., 1946 ed., §§ 67 and 70, part (R.S. 4919; R.S. 4921, amended (1) Mar. 3, 1897, ch. 391, § 6, 29 Stat. 694, (2) Feb. 18, 1922, ch. 58, § 8, 42 Stat. 392, (3) Aug. 1, 1946, ch. 726, § 1, 60 Stat. 778).
This section consolidates the provisions relating to damages in R.S. 4919 and 4921, with some changes in language.
Editorial Notes
Amendments2011—Second par. Pub. L. 112–29 struck out “of this title” after “154(d)”.
1999—Second par. Pub. L. 106–113 inserted at end “Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title.”
Statutory Notes and Related Subsidiaries
Effective Date of 2011 AmendmentAmendment by Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.
Effective Date of 1999 AmendmentAmendment by Pub. L. 106–113 effective Nov. 29, 2000, and applicable only to applications (including international applications designating the United States) filed on or after that date, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title.