To be successful in a patent case, on the merits, the patent must be valid and infringed. The Court of Appeals for the Federal Circuit has stated that irreparable injury must be presumed where validity and continued infringement are clear. The patent owner may also seek monetary damages to compensate him for the infringement. If the patent owner is able to prove with reasonable probability his lost profits, then that amount is usually the measure of damages for the patent owner. If lost profits cannot be ascertained, then a reasonable royalty is the measure of the patent owner s damages.
Punitive damages are also available.
The court may make an award of up to three times the amount of actual damages when the infringement is determined to be willful. An accused infringer has various defenses to a charge of infringement. The accused infringer may also attack the validity of the patent. However, every patent is presumed valid and the burden is on the party seeking a declaration of invalidity. The accused infringer must prove by clear and convincing evidence that the patent is invalid.