Account

Sign in to access your account and subscription

Patent Infringement Damages: Riding The Wine Railway Can Be Expensive

When the plaintiff in a patent litigation contends that it has never made or sold the product protected by its patent, alarm bells should start clanging in the ears of defense counsel. For the odds are that the plaintiff is angling to take advantage of a little-used aspect of the law of patent damages that can lead to a windfall recovery for patent infringement. It is the <i>Wine Railway</i> exception to the well-known "notice" provision of the patent statute. Created by the Supreme Court in <i>Wine Railway Appliance Co. v. Enterprise Railway Equipment Co.</i>, 297 U.S. 387 (1936), the exception can lead to catastrophic and unforeseen patent damage awards. Such damages are unforeseen (and, some would argue, unfair and undeserved) because they arise without any notice of infringement, actual or constructive.

20 minute read May 01, 2003 at 02:10 PM
By
Joseph R. DelMaster
Patent Infringement Damages: Riding The Wine Railway Can Be Expensive

When the plaintiff in a patent litigation contends that it has never made or sold the product protected by its patent, alarm bells should start clanging in the ears of defense counsel.

This premium content is locked for The Intellectual Property Strategist subscribers only

ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN The Intellectual Property Strategist

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

Already have an account? Sign In Now

For enterprise-wide or corporate access, please contact Customer Service at [email protected] or call 1-877-256-2473.

NOT FOR REPRINT

© 2026 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.

Continue Reading

Most firms are aiming their newest tools at the work they already do — pouring their most powerful technology into running the same tasks a little faster. But when everyone automates the same tasks at once, no one pulls ahead. That reaches the future a little faster while leaving a firm’s largest opportunity untouched — and that opportunity isn’t doing more of the existing work, but transforming how the high-value work gets done.

June 01, 2026

Artificial intelligence is rapidly embedding itself into legal workflows, but much of the conversation treats all use cases as if they carry the same level of risk, even if they do not. The more useful question is not whether AI works, but where it can be safely applied and where it cannot.

June 01, 2026