Sarah FackrellToday in #ImproperDisgorgementDemands
Intake Breathing Technology, LLC v. Gentavia Holdings LLC, Docket No. 1:26-cv-00255 (D. Del. Mar 10, 2026)
"Monroe Truck has sustained damages as a direct and proximate result of SLT’s infringement of the ’695 Patent and is entitled to damages pursuant to 35 U.S.C. §... 289." www.scribd.com/document/862...
No. No, you're not.
#ImproperDisgorgementDemands
Sarah FackrellAnd as you all know, § 289 damages are only available for certain acts of design patent infringement. They are not available for any acts of utility patent infringement.
In this #ScheduleA case, Floatup (represented by Doniger / Burroughs) asserts a utility patent, but calls--and treats it like--a design patent:
https://www.scribd.com/document/699275045/Floatup-v-Schedule-A-Motion-for-TRO-sans-exhibits
It is not. https://patents.google.com/patent/US11794860B1/en?oq=11%2c794%2c860
In good news: This plaintiff properly identifies their patent as a utility patent.
In bad news: They ask for design patent damages anyway.
https://www.scribd.com/document/694245665/Cixi-City-v-Yita-Complaint
"Plaintiff is not seeking relief for design patent infringement. References to 35 U.S.C. § 289 in the Amended Complaint are a typographical error."
https://storage.courtlistener.com/recap/gov.uscourts.flsd.653608/gov.uscourts.flsd.653608.52.0.pdf
On what basis does this plaintiff think it is entitled to an asset freeze, then?
The complaint incorrectly alleges that the plaintiff is entitled to recover under § 289.
It is not.
The compliant alleges--and the court's decision confirms--that this is a utility patent case.
And contrary to both the plaintiff's allegations and the court's statement here, you cannot recover § 289 damages for utility patent infringement.
Boies Schiller files a #ScheduleA complaint, tells the judge the plaintiffs are entitled to disgorgement of profits (they are not):
