	Introduction

Some Members of Congress have expressed interest in the judicial award of remedies for patent infringement for more than a decade. Courts are also authorized to grant injunctions in "accordance with the principles of equity." In addition, attorney fees may be awarded in "exceptional cases." This report reviews the current state of the law of patent remedies and surveys reform proposals that have come before Congress. A court may subject adjudicated patent infringers to several remedies that are awarded to the victorious patent proprietor. These remedies include injunctions, monetary damages, and attorney fees. The Patent Act also allows for damages to be increased up to three times for cases of willful infringement. In such circumstances, a court may apply "the entire market value rule": if a party can prove that the patented invention drives demand for the accused end product, it can rely on the end product's entire market value as the royalty base. This legislation was not enacted. Each litigant ordinarily pays its own fees in the United States, win or lose, in contrast to the "English Rule" where the losing party must compensate the lawyers for the prevailing litigant. In its 2014 ruling in Octane Fitness , LLC v. Icon Health & Fitness Inc. , the Supreme Court held that an "exceptional case" is "one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated." 9 in the 114 th Congress, would have amended Section 285 to require a court to award attorney fees to a prevailing party in any patent case. Under this legislation, if the court finds that the position or conduct of the non-prevailing party was not objectively reasonable, then the court shall award reasonable attorney fees to the prevailing party. Fees would not be shifted if special circumstances, such as undue economic hardship to a named inventor or an institution of higher education, would make an award unjust. Enhanced Damages

Section 284 of the Patent Act currently provides that the court "may increase the damages up to three times the amount found or assessed." Although not subject to a "rigid formula," the award of enhanced damages may depend on such factors as whether the infringer intentionally copied the patent proprietor's product; whether the infringer acted in accordance with the standards of commerce for its industry; whether the infringer made a good faith effort to avoid infringing; whether there is a reasonable basis to believe that the infringers had a reasonable defense to infringement; and whether defendants tried to conceal their infringement. Although bills directly addressing the topic of enhanced damages have not been placed before Congress in many years, these earlier proposals were more restrictive than the standards adopted in Halo v. Pulse . In addition, under H.R. Some observers believe that this doctrine ensures that patent rights will be respected in the marketplace. §289 provides that a person who manufactures or sells "any article or manufacture to which a [patented] design or colorable imitation has been applied shall be liable to the extent of his total profit, but not less than $250." Like other sorts of patent proprietors, a design patent holder may obtain its own lost profits or reasonable royalties from the adjudicated infringer. Reactions to the ruling in Samsung v . Apple have varied. They believe that the Supreme Court's ruling adversely affects the value of design patents and obligates the lower courts to reach difficult decisions when accused infringers assert that the patented "design for an article of manufacture" is in fact less than the entirety of the product they are selling. Section 106 of the bill, titled "Restoration of patents as property rights," provides in principal part:
Upon a finding by a court of infringement of a patent not proven invalid or unenforceable, the court shall presume that—
(1) further infringement of the patent would cause irreparable injury; and
(2) remedies available at law are inadequate to compensate for that injury. This proposal would therefore establish a presumption that two of the four eBay factors support the grant of an injunction in cases of patent infringement. Under current law, the patentee must demonstrate that the four eBay factors support the award of an injunction against an adjudicated infringer.
For more than a decade, some Members of Congress have considered bills that have proposed reforms to the law of patent remedies. Under current law, courts may award damages to compensate patent proprietors for an act of infringement. Damages consist of the patent owner's lost profits due to the infringement, if they can be proven. Otherwise the adjudicated infringer must pay a reasonable royalty. Courts may also award enhanced damages of up to three times the actual damages in exceptional cases. In addition, courts may issue an injunction that prevents the adjudicated infringer from employing the patented invention until the date the patent expires. Finally, although usually each litigant pays its own attorney fees in patent infringement cases, win or lose, the courts are authorized to award attorney fees to the prevailing party in exceptional cases.
Some observers believe that the courts are adequately assessing remedies against adjudicated patent infringers. Others have expressed concerns that the current damages system systematically overcompensates patent proprietors. Some suggest that the usual rule regarding attorney fees—under which each side most often pays its own fees—may encourage aggressive enforcement tactics by "patent assertion entities," which are sometimes pejoratively called patent trolls.
Damages often occur in the context of a patent that covers a single feature of a multi-component product. In addition, many of these other components are subject to additional patents with a fragmented ownership. The courts have developed such principles as the "entire market value rule" and have also addressed the concept of "royalty stacking," in order to address these issues. Legislation was introduced before Congress relating to these matters, but these bills were not enacted.
Current law allows courts to award enhanced damages in exceptional cases, which ordinarily applies to circumstances of willful infringement or litigation misconduct. Recent Supreme Court decisions appear to have increased the likelihood that enhanced damages will be awarded, in contrast to earlier legislative proposals that were more restrictive.
Bills in the 114th Congress would have called for the prevailing party to be awarded its attorney fees in patent litigation. Under these proposals, fees would not be awarded if the nonprevailing party's position and conduct were justified or special circumstances made the award unjust. This legislation was not enacted, but it may be reintroduced in the 115th Congress.
Design patents are subject to a special damages statute which asserts that anyone who sells an "article of manufacture" containing the patented design may be liable to the patent owner "to the extent of his total profit." In its 2016 decision in Samsung v. Apple, the Supreme Court ruled that an "article of manufacture" need not consist of the entire product sold to consumers, but could also mean a portion of a multi-component product. This ruling appears to have decreased the damages available for the infringement of design patents that apply to products with multiple features.
In the 115th Congress, the STRONGER Patents Act of 2017, S. 1390, would modify the principles governing the award of an injunction against an adjudicated patent infringer. S. 1390 would establish a presumption that future infringements would cause irreparable injury and that legal remedies, such as damages, are inadequate to compensate for those infringements. This proposal would increase the likelihood that patentees could obtain an injunction against infringers.