Where a valid and enforceable patent has been infringed, the patent holder is entitled to recover at least a reasonable royalty, as well as lost profits, when applicable. Treble damages and attorneys’ fees are available in a case of willful infringement.

A reasonable royalty is calculated to reflect the amount the patent holder would have received in royalties from the defendant if the defendant had negotiated a license at the time the infringement began. The court considers many factors in calculating the exact amount, including:

• whether there are other licenses by the patent holder, or other comparable licenses, which would tend to prove an established royalty;
• the established licensing policies of the patent holder;
• the nature and scope of the license;
• the commercial relationship between the licensor and licensee;
• the profitability of the product using the license; and,
• the portion of the profits of the product that is due to infringing the patent versus profits from non-infringing elements of the product

Lost profits are the profits the patent holder would have made despite the defendant’s infringement of the patent. To recover lost profits, a patent holder must show:

• its profit margin;
• the market demand for the patented feature;
• the absence of non-infringing substitutes for the invention; and,
• that it had capacity to meet the needs of the defendant’s customers.

The infringer may have to pay treble damages (three times the actual money damages) if the defendant’s infringement was “willful.” To prove that the infringement was willful, the patent holder must show:

• the defendant knew of the patent; and,
• the defendant either copied the patent or tried to design around it.

Whether the defendant engaged in any litigation misconduct or had substantial defenses to the lawsuit may also be considered in determining willfulness.