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The Case for Restitution and Unjust Enrichment Remedies in Patent Law

32 Pages Posted: 20 Dec 2009 Last revised: 24 Apr 2012

Caprice L. Roberts

Savannah Law School

Date Written: March 14, 2010


A patent owner should have access to a restitutionary disgorgement remedy. The goals served by the remedy could operate to benefit patent law aims. Depending upon the desired parameters, the remedy could serve to prevent the infringer’s unjust enrichment, recapture wrongful gains to the owner who lost an opportunity to gain, deter infringement, and encourage bargaining for licenses.

Congress’s deletion of the infringer’s profits from the Patent Act and the Supreme Court’s interpretation of congressional intent as an outright elimination of the remedy do not render restitutionary principles incompatible with patent law. Even pursuant to the Court’s flawed interpretation of congressional intent, an infringer’s gain is permissible evidence of a patent owner’s loss in appropriate cases. Also, existing law does not foreclose the option of disgorgement as a contempt sanction.

To protect the limited monopoly established through a valid patent, Congress should reform the Patent Act to re-authorize a restitutionary disgorgement remedy. In keeping with disgorgement’s equitable roots, disgorgement could be reserved for cases in which legal damages are inadequate. Congress also could choose to limit disgorgement’s availability to instances of conscious infringement. Of course, Congress could determine that patent law’s goals are distinct from other intellectual property and that restitutionary principles do not foster the intended patent law aims. At least then elimination would be clear and access to the remedy would be denied on substantive grounds.

Keywords: Patent, Infringement, Disgorgement, Restitution, Remedy, Unjust Enrichment, Patent Act, Intellectual Property

Suggested Citation

Roberts, Caprice L., The Case for Restitution and Unjust Enrichment Remedies in Patent Law (March 14, 2010). Lewis & Clark Law Review, Vol. 14, No. 2, 2009. Available at SSRN:

Caprice L. Roberts (Contact Author)

Savannah Law School ( email )

516 Drayton St.
Savannah, GA 31401
United States


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