🚀 go-pugleaf

In article <1991May24.232259.17611@retix.retix.com> jay@retix.retix.com (Jay Logue) writes:
>Is it typical for the courts to find against a user of a patented
>invention when the user was obviously unaware or missled about legal
>status of the invention?   Are cases involving this sort of dispute
>commonplace? 

First, it's unlikely that an individual innocent infringer would be sued by
a patent holder, since it is costly to sue and attornies' fees are only
awardable in a patent infringement suit in "exceptional cases" (35 USC 285).
Also, the damages would be small, probably a "reasonable royalty for the
use made of the invention by the infringer, together with interest and costs"
(35 USC 284).  An infringement suit is more likely against a infringer who
is distributing many copies of the patent invention (and has deep pockets).

Would a court find against an innocent user?  Probably yes, because being
unaware or misled is not one of the defenses generally recognized for patent
infringement (otherwise it's in a potential infringer's interest not to ever
become aware of patents).  However, damages would be limited by 35 USC 287,
which states that if notice to the public wasn't given by properly marking
the invention, "no damages shall be recovred by the patantee in any action
for infringement, except on proof that the infringer was notified of the
infringement and continued to infringe thereafter, in which event damages
may be recovered only for infringement occurring after such notice."

(That's why the letter that started this whole discussion was sent.)

			Lee