Answer ... In most cases, if the trial judge finds a patent to be valid and infringed, the judge will also grant a permanent injunction restraining the defendant from infringing the patent until its expiry. A patentee which seeks an interlocutory injunction prohibiting allegedly infringing acts pending trial must satisfy the following three-part test:
- the existence of a serious issued to be tried;
- that the patentee will suffer irreparable harm if the injunction is not granted; and
- that the balance of convenience favours the granting of the injunction.
However, it is rare for a plaintiff to seek an interlocutory injunction in a patent infringement action, since it is very difficult to establish the irreparable harm criterion.
Answer ... A successful patentee will typically be awarded:
- reasonable compensation for infringing acts between publication of its patent application and issuance of its patent; and
- its election of damages for post-issuance activities or infringer’s profits.
Answer ... It is virtually automatic for a trial judge to award a permanent injunction where a patent is held to be valid and infringed at trial. The test for an interlocutory injunction pending trial is a three-part test that is difficult to meet.
Answer ... If the trial judge is of the view that the infringer’s conduct warrants a remedy beyond the standard award of the patentee’s damages or the infringer’s profits, the judge may also make an award of punitive damages.
Answer ... The most common type of sanction is a finding of contempt of court if the infringer disobeys an interlocutory or permanent injunction by continuing its infringing activities.
Answer ... It is typical for the court to award a successful party the recovery of at least a portion of its legal fees and disbursements.
Answer ... As noted above, it is typical for the court to award a successful party at least a portion of its legal fees and disbursements. The amount of the recovery can vary depending on factors such as:
- the complexity of the case;
- any settlement offers that were exchanged;
- the reasonableness of the fees and disbursements; and
- any conduct of the parties during the litigation process.