In a strongly worded opinion, the U.S. Court of Appeals for the Federal Circuit stated that “Section 284 [of the Patent Act] imposes no limitation on the types of harm resulting from [patent] infringement that the statute will redress. The section’s broad language awards damages for any injury as long as it resulted from the infringement.” King Instruments v. Perego, 65 F.3d 941, 947 (Fed. Cir. 1995). Notwithstanding this powerful language and the increasing trends in patent-infringement damages awards, one potential category of damages has been largely ignored. In particular, in calculating patent damages everyone looks at an infringer’s actual sales. There are no reported decisions, on the other hand, seeking damages on the many “offers for sale” of an infringing product when no consummated sale has been made. The damages collectible from such infringing activity could be significant.
The statutory basis for damages resulting from infringement of a utility patent is �284 of the 1952 Patent Act. This section provides, in relevant part, that upon a finding for the claimant, the court shall award 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.”
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