dissenting-in-part
In Rite-Hite v. Kelley Co., 56 F.3d 1538, 35 USPQ2d 1065 (Fed.Cir.1995) (in banc), this court divorced lost profit damages from injury to the patentee’s business in goods protected by the infringed patent. A paten-tee was held entitled to damages based on lost trade in its goods protected under an unlitigated patent which competed with the infringing goods. In this case, the panel majority eliminates the Rite-Hite requirement for the patentee to put out, at least, a competitive counterpart for the infringing product. Under this decision, any economic loss to a patentee’s business is held legally compensable as damages for patent infringement. The court has now twice declared that the remedy Congress has provided of damages calculated as a reasonable royalty are inadequate and judicially fashions a better one for patentees which conforms to the majority’s view of the public interest.
The panel majority holds that the district court did not “abuse its discretion”1 in awarding the patentee King lost profits based on King’s share of the tape loader market, which it held at the time of Tapemat*954ic’s infringement of U.S. Patent No. 3,825,461 (the ’461 patent). The infringed ’461 patent covers a splicer head assembly for use as part of a tape loader. The award was calculated based on the profit margin on King’s model 790 tape loader, a device which does not use the technology of the ’461 patent. In addition, lost profits were awarded on spare parts for King’s unpatented machines. For convenience I will refer to King’s 790 tape loader as “unpatented,” meaning that it does not embody the invention of the infringed ’461 patent. However, the 790 machine may be covered by other extant, expired, or invalidated patents in King’s portfolio. See King Instrument Corp. v. Otari Corp., 767 F.2d 853, 226 USPQ 402 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986) (“Otari”) (U.S. Patent No. 3,737,358 on a “shift block” splicer held invalid.).
The Rite-Hite court ruled that patent infringement damages under 35 U.S.C. § 284 encompass profits lost by the patentee in its business in goods which compete with the infringer whether or not the patentee’s goods embody the invention of the patent in suit. The in banc court rejected the argument that legal injury for loss of trade was limited to diversion of business from the patentee’s market in the patented goods in issue. Under the Rite-Hite decision, a patentee may be awarded lost profits without proving that the invention created consumer demand for the goods which the patentee would have satisfied but for the infringement. The in banc court interpreted the statute to provide “only a lower limit of a reasonable royalty and no other limitation” on patent infringement damages. Rite-Hite, 56 F.3d at 1544. The in banc court also declared the policy of encouraging the patentee to commercialize patented inventions by the “carrot” of damages for injury to its market in patented goods is not meaningful or persuasive.2 Rejecting all arguments based on the statute, prior precedent, policy and logic, the Rite-Hite court ruled that lost sales in the paten-tee’s business in competitive goods which were protected not by the patent in suit but by an unasserted patent were “legally com-pensable.” The Rite-Hite decision went on to opine (albeit in dicta) that a patentee’s lost sales of goods in the public domain were equally compensable if customers would not have obtained such goods from a third party.
I reject this change in patent damages law. My reasons are more fully explained in my dissenting opinion in Rite-Hite, 56 F.3d at 1556-78, 35 USPQ2d at 1078-96 (in which Chief Judge Archer, Senior Circuit Judge Smith and Circuit Judge Mayer joined). I conclude that patent infringement damages for loss of trade depend on injury to the patentee’s market in goods utilizing the invention of the infringed patent. A patent grants the patentee a legal right to a protected market only for patented goods. A patent does not grant the patentee a right to a protected market in unpatented goods. A patent entitles the patent owner to the fruits of the invention, not the fruits of the paten-tee’s business generally. In sum, lost profits are not a legal injury, but only a measure of damages for a legal injury. To constitute legal injury to a patentee’s business for which lost profits may be awarded for patent infringement, the patentee must have a market in the patented goods from which sales were diverted by the infringer. Further, it must be proved that, but for the infringer’s acts, the customers would have bought the patented goods from the patentee because of the customer demand for the patented invention. Absent such proof, the patentee is entitled to damages calculated as a reasonable royalty for the use of the invention made by an infringer. 35 U.S.C. § 284. Such award satisfies the requirement for “full compensation” recognized in General Motors Corp. v. Devex Corp., 461 U.S. 648, 653-54, 103 S.Ct. 2058, 2061-62, 76 L.Ed.2d 211, 217 USPQ 1185, 1187-88 (1983).
The Supreme Court stated the principle over 100 years ago in Crosby Steam-Gage & Valve Co. v. Consolidated Safety Valve Co., 141 U.S. 441, 452-53, 12 S.Ct. 49, 53, 35 *955L.Ed. 809 (1891), that, to recover for loss of trade, a patentee must prove it was “putting on the market goods embodying the [patented] invention.” See also, Seymour v. McCormick, 57 U.S. (16 How.) 480, 14 L.Ed. 1024 (1853) (actual damages depends on patentee’s commercial exploitation of the patented product either by satisfying the market demand or licensing); Rude v. Westcott, 130 U.S. 152, 165-67, 9 S.Ct. 463, 468-69, 32 L.Ed. 888 (1889); Yale Lock Mfg. v. Sargent, 117 U.S. 536, 552-53, 6 S.Ct. 934, 942-43, 29 L.Ed. 954 (1886). Apparently, the majority of this court assumes that the Supreme Court would overturn this precedent because of the statement in the Devex ease cited above that, under the present Act, a patent owner is entitled to “full compensation for ‘any damages’ he suffered as a result of the infringement.” However, the Supreme Court has to date pronounced no expansion in the legal scope of “damages,” which all circuits, except this one, have followed.3 It ill behooves this court to anticipate that the Supreme Court will overturn controlling precedent. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). Supreme Court precedent unequivocally holds that lost profits awards are reserved solely for injuries caused by an infringer’s interference with the patent owner’s trade in goods embodying the invention of the infringed patent.
The in banc court remanded this appeal, which also had been taken in banc, for decision in accordance with Rite-Hite by the original panel. However, the majority of the panel makes a quantum leap from Rite-Hite in expanding the scope of legal injuries for patent infringement. As will be more fully explained, the infringed patent is used in an optional accessory for the infringer’s tape loader, a reel changer, an accessory for which the patentee offers no counterpart. In addition, the invention, a splicer head, is only a part of the reel changer. The majority ignores the requirement for proof that the patented splicer head provides the commercial magnetism for the entire device. Where a patented invention is only a part of the infringing machine, the patentee must show “ ‘that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature.’ Garretson v. Clark, 111 U.S. 120, [4 S.Ct. 291, 28 L.Ed. 371].” Westinghouse Co. v. Wagner Mfg. Co., 225 U.S. 604, 615, 32 S.Ct. 691, 694, 56 L.Ed. 1222 (1912) (emphasis added); accord Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 50, 63 S.Ct. 1393, 1416, 87 L.Ed. 1731 (1943) (defendant not liable for “non-infringing and valuable improvements which had contributed to the making of the profits.”); see also Sheldon v. Metro-Goldwyn Corp., 309 U.S. 390, 400-405, 60 S.Ct. 681, 685-87, 84 L.Ed. 825 (1940) (analyzing patent and copyright damages). The “entire market value rule,” as it is known, surfaces only in a footnote in the majority opinion and is not applied. However, as reaffirmed in Rite-Hite, 56 F.3d at 1549-50, the entire market value rule permits recovery of damages on the value of an entire machine only where the patent-related feature is the basis for customer demand.
The majority panel opinion is strangely devoted to justification of the in banc ruling on damages in Rite-Hite which, of course, needs no endorsement by this panel. In contrast, the majority is virtually silent on the justification for the award of lost profits on the facts of this ease to which I turn.
The Facts
King and Tapematie market machines called tape loaders that cut, splice and wind magnetic audio or video tape into closed cassettes. The magnetic tape must be spliced to leader tape affixed to the winding hubs in the cassette. King charged Tapematie with in*956fringement of its U.S. Patent Nos. 3,637,153 and 3,997,123 directed respectively to a tape loader and to a more automated version thereof. The majority affirms that Tapemat-ie’s tape loaders are not infringements of those patents.
In addition to the uninfringed ’153 and ’123 patents, King also charged Tapematie with infringement of a third patent, U.S. Patent No. 3,825,461 (’461 patent), which is directed to a particular splicing head assembly for connecting magnetic tape to leader tape in a tape loader. Neither King nor Tapematie use this invention in a tape loader. As an optional accessory to its tape loader, Tape-matic provides a reel changer that automatically switches to and splices a second reel of magnetic audio or video tape when the first reel runs out. Obviously, a reel changer splices magnetic tape to magnetic tape. A different type of splice is used in this procedure from that required for splicing magnetic tape to leader tape in the tape loader. However, the majority construes one claim of the ’461 patent, which is written in broad “means-plus-function” terms (35 U.S.C. § 112, ¶ 6), to cover the splicing of magnetic tape to magnetic tape in a reel changer. The splicing head used in Tapematic’s reel changer is found to be an equivalent of the splicing head assembly disclosed in the ’461 patent and is held to be an infringement within the construction it gives the claim language under section 112, ¶6.
No Competitive Products
Assuming that the finding that Tapematic’s splicing head in its reel changer infringes the ’461 claim is correct,4 it does not follow that lost profits are awardable under Rite-Hite for King’s losses in sales of its tape loader. Under Rite-Hite, King would have to, at least, offer a reel changer. King offers no reel changer — competitive or otherwise— for its own tape loader. Similarly, the award of lost profits on unpatented spare parts for an unpatented machine does not meet the requirement in Rite-Hite for proof of competition between the unpatented product and goods of the infringer. There is no allegation or finding that Tapematie competed with spare parts. Thus, the awards of lost profits here expand upon the Rite-Hite ruling.
The Entire Market Value Rule
When a patentee either seeks damages on an entire machine where its patent covers only a patented component or seeks damages for lost sales of unpatented goods sold along with a patented device (“convoyed” sales), a patentee must satisfy the entire market value rule, that is, the patentee must prove that the patent-related feature is the basis for customer demand for the unpatented parts to which it seeks to extend its damages. Westinghouse, 225 U.S. at 615, 32 S.Ct. at 694-95. In Rite-Hite, the in banc court reaffirmed the viability of the entire market value rule and imposed a further limitation that “convoyed” sales must bear a functional relationship with the patented goods. In Rite-Hite, lost profits were awarded for the patentee’s lost sales of truck restraints, a device which holds a vehicle to a loading dock, (even though protected only under an unasserted patent) and lost profits were denied on “convoyed” sales of a loading dock leveler.
Perhaps the panel majority here did not attempt to apply the entire market value rule to a lost profits award involving a patentee’s unpatented goods because it makes no sense. This is a classic case where apportionment of a defendant’s ill-gained profits in an equitable accounting and of a patentee’s claim for its own lost profits as actual “damages” would have been required under earlier statutes.5 Dobson v. Darnan, 118 U.S. 10, 6 *957S.Ct. 946, 30 L.Ed. 63 (1886); Dobson v. Hartford, 114 U.S. 439, 444-46, 5 S.Ct. 946, 947-49, 29 L.Ed. 177 (1885). Because a pat-entee was entitled only to the defendant’s profits and/or its own lost profits to the extent attributable to its patented invention, and because of the virtual impossibility and difficulties of apportionment to reflect that amount, Congress was persuaded to change the statute.6 Congress expressly did away with equitable accountings for the defendant’s profits, which was the usual starting place for determination of compensation. At the same time, Congress provided that damages may be calculated as a reasonable royalty in all eases. The statute was not otherwise changed respecting “damages.” Either Congress intended to maintain apportionment of actual “damages” or it intended that “damages” be awarded as a reasonable royalty in lieu of apportionment. Congress did not eliminate the prior restriction for apportionment of a patentee’s lost profits in calculating “damages.” See Devex, 461 U.S. at 663, 103 S.Ct. at 2061 (“appropriate to infer that Congress intended to adopt the established judicial interpretation.”)
Our case law, pre-Rite-Hite, dealt of course with the entire market value rule only in connection with the patentee’s claim for lost profits on its own goods of which the patented invention was a part. “[T]he entire market value rule ... permits recovery of damages based on the value of a [patentee’s] entire apparatus containing several features, where the patent related feature is the basis for consumer demand.” State Indus. v. Mor-Flo Indus., 883 F.2d 1573, 1580, 12 USPQ2d 1026, 1031 (Fed.Cir.1989); TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 900-901, 229 USPQ 525, 528 (Fed.Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 183, 93 L.Ed.2d 117 (1986). The Rite-Hite court did not explain how the entire market value rule should work when dealing with a patentee’s claim for lost profits on its unpatented goods and the defendant’s device contains only an infringing feature, as here. In this context, I find the application of an entire market value rule mind-boggling. Obviously the patented splicer head did not create demand for King’s tape loader because that type of splicer is not used at all in the patentee’s goods. Assuming the in banc court meant that the patentee gets the entirety of its lost profits on a competitive unpatented product if the patented component is the basis for consumer demand for the infringer’s goods (the logic of which escapes me), then the lost profit award here fails for lack of proof. Indeed, King did not attempt to prove, and does not even argue, that the patented invention created demand for the infringer’s reel changer, much less its tape loader, or for the spare parts. The district court found that numerous noninfringing products were available. King Instrument Corp. v. Perego, 737 F.Supp. 1227, 1242 (D.Mass.1990). King argues only that “but for” the competition from Tapematic’s admittedly improved tape reeler with a reel changer, the “dual pancake” device, King would have kept its share of the market with its “single pancake” tape loaders.7 King proved no actual loss of sales to the infringer because of the public’s demand for the patented splicer technology.
The award of the patentee’s lost profits on spare parts for its unpatented machine reveals the full extent of the change in the law by this panel. In Otari, supra, which involved the ’153 King patent, one of the patents asserted here but not infringed, King was awarded lost profits on its tape loader which did embody the ’153 invention. In addition, King sought lost profits on sales of unpatented spare parts it expected to sell along with its patented tape loader. In overturning the damages awarded in connecting with injury to King’s spare parts business, this court explained:
*958King asserts that its spare parts ... are parts which it normally sells with the patented swing arm machine. Such simplistic outlook fails to perceive the underlying significance of the entire market value rule, which was accurately applied by one of our predecessor courts in Leesona Corp. v. United States, supra. In defining those spare parts for which a patent owner may recover, the Court of Claims recognized that parts [must] ... derive their existence and value from the patent.
Otari, 767 F.2d at 865, 226 USPQ at 411; See also Leesona Corp. v. United States, 599 F.2d 958, 975, 220 Ct.Cl. 234, 202 USPQ 424, 440, cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979) (award of compensation made on unpatented replacement anodes part of patent value where patented “battery’s very uniqueness ... lies in replacing anodes to be recharged”). Having just reen-dorsed the entire market value rule, it is anomalous in the extreme that this court now approves lost profits for injury to King’s spare parts business for an unpatented machine when this court in Otari denied damages for injury to King’s spare parts business for its patented machine. The entire market value rule is simply jettisoned in this ease. However, the panel has no license to change prior precedent.
Additional Comments
With respect to this panel’s substitute analysis of the statute for that of Rite-Hite, a few comments are in order.
The panel majority posits that the language of section 154 of the Act of 1952 clarified that a patent empowers its owner to exclude others from practicing the invention and that the damages action, section 284, protects the right to exclude, not the right to exploit.8 While correct, actual damages, nevertheless, depend on the patentee’s manner of exploitation, i.e., manufacturing or licensing. The right to exclude is not “injured” by an infringer, anymore than a landowner’s right to exclude is “injured” by a trespasser. The right to exclude remains enforceable to its fullest. A trespasser can inflict injury only on the property on which the trespass is committed, for example by cutting the trees. Similarly, a patent infringer cannot injure the patent itself, but only property rights protected by the patent, namely, the paten-tee’s exclusive market for patented goods.
The majority states that “inventors have a natural right to exploit their inventions apart from any government grant. Therefore, patent rights do not depend upon the exercise of rights already in the patentee’s possession. [A patent] does not confer the right to exploit the invention already possessed by the inventor.” Slip op. p. 949. However, if an inventor merely exercises his natural right to exploit his invention without a patent, once the product is in the market, all competitors have the same right. Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 156, 109 S.Ct. 971, 980, 103 L.Ed.2d 118 (1989). A patent provides what an inventor’s natural right does not — namely, a right to exclusivity in the market place during the patent term. The patent right to exclusivity is far different from the natural right to exploit an invention.
The panel majority next proclaims that requiring the patentee’s “exploitation of the claimed invention for a recovery of lost profits would cause a systematic failure to award ‘damages adequate to compensate for the infringement.’” Slip op. at 951. Such a requirement, according to the majority, “would force patent owners to accept a reasonable royalty in cases where a reasonable royalty is inadequate compensation” and would amount to a compulsory license. At the same time the majority approves the anathema of a compulsory license in this ease. Damages are calculated as a reasonable royalty for the 30 percent of Tapematic’s sales for which lost profits were not awarded. The short answer is that the award of a reasonable royalty as damages is not a license, but is simply a method of calculating damages. Dowagiac Mfg. Co., 235 U.S. at *959649, 35 S.Ct. at 224; Devex, 461 U.S. at 652 n. 5, 103 S.Ct. at 2060 n. 5. As I stated in Rite-Hite, 56 F.3d at 1574, 35 USPQ2d at 1093, “[a] reasonable royalty is in fact a Congressional largesse for cases where a patentee might otherwise receive only nominal damages. A patentee is now statutorily entitled to a reasonable royalty even though it has not suffered or cannot prove a financial loss to its market in patented goods.”
The panel majority’s discussion of damages in the form of a reasonable royalty concludes with the pronouncement that a reasonable royalty encourages infringement and quotes Stickle v. Heublein, Inc., 716 F.2d 1550, 219 USPQ 377, (Fed.Cir.1983). Noting the language is attributable to me as author, I must acknowledge the inartfulness of some of my language. However, Stickle says no more than that a reasonable royalty for an infringer is not a normal, routine, or established royalty.9 Supreme Court precedent on damages calculated as a reasonably royalty better explains the concept. See Dowagiac Mfg., 235 U.S. at 648-50, 35 S.Ct. at 224-25. In any event, where infringement is innocent as here, the amount of damages cannot operate as a “deterrent,” except as a brake to legitimate challenges to a charge of infringement. A patent now hangs like the sword of Damocles over competition with unpatented goods and serves as a powerful means for extortion. In contrast, Congress has provided a balanced rational system of penalties and rewards. All infringers are liable for damages, either actual or a statutory royalty award. Innocent infringement theoretically may be profitable where damages are calculated as a reasonable royalty. (See Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075, 1081, 219 USPQ 679, 684 (Fed.Cir.1983)) (it is implicit that a reasonable royalty leaves an infringer with a reasonable profit); Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116, 1122, 166 USPQ 235, 239 (S.D.N.Y.1970) (reasonable royalty leaves a profit margin). That was the choice Congress made. The evil, which Congress discerned, was knowing infringement. Where infringement is willful, damages may be increased up to three times. Here, damages for innocent infringement are increased more than ten times over the statutory entitlement.10
A reasonably royalty is adequate damages where a patentee is in the market with patented goods but along with competitive non-infringing substitutes which would have shared the infringing sales, Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1157-60 (6th Cir.1978), as well as for patentees who do not exploit the market for the patented goods. Id. What Congress has so fixed by statute cannot be inadequate.
In note 2, the panel decrees that all economic harm to the patentee is compensable as “a direct and foreseeable result of infringement.” Congress disagrees. To recover any damages — lost profits or a reasonable royalty — a manufacturing patentee must mark its products with a notice of patent rights or provide actual notice of infringement. 35 U.S.C. § 287 (1988). The products on which King receives lost profit damages are not marked and could not be marked with notice that they are protected by the ’461 patent. Further, no actual notice of infringement of the ’461 patent was given prior to the date from which damages are awarded. The award here conflicts with section 287.
One final comment. In Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 424-430, 28 S.Ct. 748, 753-56, 52 L.Ed. 1122 (1908), the Supreme Court held that commercialization of an invention was not necessary for an injunction against infringement. The panel majority cites another eq*960uity case which held that a patent could not be refused on the ground it might be used only to protect another patented invention of which it was a part. Special Equipment Co. v. Coe, Comm’r of Patents, 324 U.S. 370, 65 S.Ct. 741, 89 L.Ed. 1006 (1945). A majority of the court believes it follows that disclosure of an invention is, in itself, sufficient for damages to a patentee’s business in unpat-ented goods. However, an injunction is directed to the equity power of the court and may be denied. Rite-Hite, 56 F.3d at 1547-48. Damages are provided by a rule of law respecting what constitutes legal injury and may not be refused as a matter of the court’s discretion. The majority compares apples and oranges. To amplify the words of the panel with appropriate inserts: “The economic rewards [from the patented invention] during the period of exclusivity are the carrot. The patent owner expends resources in expectation of receiving this reward. Upon grant of the patent, the only limitation on the size of the carrot should be the dictates of the marketplace [for the patented invention].” Slip op. 949. In the present ease, while the market has provided a carrot that King disdains, the panel majority, contrary to its admonition to let the market determine rewards, furnishes King with a full course meal. Despite two hundred years of our patent system without such awards, there is no evidence of a systematic failure which the majority elevates to one of constitutional dimension. If anything, the systemic failure now goes the other way. The public is deprived of the benefits of the invention during the term of the patent while the patentee is assured its market share of profits on unpat-ented goods if it keeps the invention from the public. This is not the bargain Congress intended by granting the patentee an exclusive market for the patented goods.
In the majority view, “[u]nder this situation [an award of damages connected to un-patented products], the Patent Act is working well.” Slip op. p. 950. I disagree. Only if one elevates rewards to patentees over other public interests could one reach this conclusion. And it is not the view espoused by the Supreme Court. Contrary to the majority, Aro Mfg. Co., 377 U.S. at 505-507, 84 S.Ct. at 1542-43, 141 USPQ at 693-94, did not expand the basis for actual damages “to cover any pecuniary injuries” to a patentee’s business including lost profits on unpatented goods as the majority asserts. Slip op. at 11. In rejecting that expansive view of patent infringement damages, the Aro Court stated that the patentee’s damages theory “would enable the patentee to derive a profit ... on unpatented rather than patented goods — an achievement proscribed by the Motion Picture Patents [243 U.S. 502] and Mercoid [320 U.S. 661] cases.” Aro, 377 U.S. at 510, 84 S.Ct. at 1544 (plurality). As stated in Aro, and prior Supreme Court precedent, a paten-tee is unequivocally not entitled to lost profits on unpatented goods.11
Congress made the policy choice that the “carrot” of an exclusive market for the patented goods would encourage patentees to commercialize the protected inventions so that the public would enjoy the benefits of the new technology during the patent term in exchange for granting a limited patent monopoly. In other words, the public expected benefits during ‘“the embarrassment of an exclusive patent as Jefferson put it.’ ” Graham v. John Deere Co., 383 U.S. 1, 10-11, 86 S.Ct. 684, 690, 15 L.Ed.2d 545 (1965). As stated in Bonito Boats, 489 U.S. at 150-51, 109 S.Ct. at 977:
The federal patent system thus embodies a carefully crafted bargain for encouraging the creation and disclosure of new, useful, and nonobvious advances in technology and design in return for the exclusive right to practice the invention for a period of years.
(Emphasis added.) If the patentee did not commercialize the invention directly or by license, until now the patentee could not prove actual damages but, nevertheless, was entitled to the remedies of damages calculated as a reasonable royalty and an injunction. Now the patentee is rewarded the same as, *961indeed, more than, if it had made the investment to bring the goods into the market.12 However, no legislation has ever been proposed to compensate a patentee for losses to its unpatented business in order to correct the inadequacies the majority sees in the legal scope of damages which have heretofore been awardable. This court has simply judicially legislated an expansion of patent rights from protection of an exclusive market in patented goods to protection of the paten-tee’s unpatented business as well. The court does away with the “carrot” Congress determined would get new products into the economy.
I will not burden this opinion by fuller analysis of the meaning of “damages” under 35 U.S.C. § 284, which is fully set out at 56 F.3d at 1556-78, 35 USPQ2d at 1078-96. I will only point out that the dissent and the majority rely on many of the same Supreme Court eases but derive from them absolutely conflicting tenets. Clarification from higher authority is needed on the scope of protection afforded by a patent and the meaning of patent infringement “damages.”
. For a discussion of the standard of review for patent damages applied in our court, see Smith-Kline Diagnostics, Inc. v. Helena Lab. Corp., 926 F.2d 1161, 1163-65, 17 USPQ2d 1922, 1924-25 (Fed.Cir.1991).
. The court found encouragement to practice the invention in the possibility of denial of an injunction, a possibility so remote as to be ludicrous. Moreover, treble damages are assessable where infringement is deliberate. Use of the invention by others merely because no injunction is in place is outside the world of reality.
. See Rite-Hite, 56 F.3d at 1567-68, 35 USPQ2d at 1087-88 (Nies, J., dissenting), reviewing decisions of other circuits which uniformly hold that a patent protects a patentee's market only for those goods embodying the invention of the infringed patent.
. Tapematie challenges the expansive legal interpretation given to the scope of the claim under which it is found to infringe.
. The panel implies that prior to 1946, a patentee could recover under R.S. § 4921 both its own damages and the infringer’s profits. Not so. No double recovery was ever allowed. The equity court would award "damages" (the equity courts were given special power to award "damages” by Act of 1876) only when a patentee’s actual losses exceeded the defendant's profits. See Georgia-Pacific Corp. v. United States Plywood Corp., 243 F.Supp. 500, 516-46, 146 USPQ 228, 242-54 (S.D.N.Y.1965), for an extended analysis of statutory remedies in successive patent statutes.
. At the Congressional hearings of the 1946 statute, Patent Office officials explained that "[d]am-ages in a legal sense means the compensation which the law will award for an injury done.” House Hearings at 9. With respect to the restriction of profits created by the invention, there was total agreement that "those [are] the only profits to which the patentee is entitled.” Id. at 3 (Fish letter introduced by Hon. Robert K. Henry, Member of Congress).
. While this court has approved a market share award of lost profits, heretofore the market share was based on the patentee’s share of the market based on patented products augmented by shares of infringers and licensees. State Indus., supra.
. See Aro Mfg. Co., Inc. v. Convertible Top Replacement Co., 377 U.S. 476, 505, n. 20, 84 S.Ct. 1526, 1542, n. 20, 12 L.Ed.2d 457, 141 USPQ 681, 693, n. 20 (1964) (“In the 1952 codification, §§ 67 and 70 of the 1946 Code were consolidated in the present § 284. The stated purpose was merely the 'reorganization in language to clarify the statement of the statutes,’ ” quoting H.R.Rep. No. 1923, 82nd Cong., 2d Sess. at 10, 29 (1952)).
. What the majority omits from its reference to Stickle, however, are my comments relating to damages:
Contrary to [the defendant's] argument, damages to the patent holder cannot simply be calculated in all cases by determining 'the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred. [citation omitted]. In the absence of exploitation by the patent holder, no damages would be awardable.
Stickle, 716 F.2d at 1560-61 (emphasis added).
. A reasonable royalty was fixed at $1,100 per unit of infringing sales, whereas lost profits amounted to $14,400 per unit. King, 737 F.Supp. at 1242.
. I must point out that Aro is a case on patent damages, not antitrust law, the basis on which the majority in Rite-Hite discounted similar statements in other precedent. 56 F.3d at 1538, 1544-46, 35 USPQ2d at 1069-70.
. King's profit margin was determined on an incremental basis on an established line where fixed costs had been recouped. The majority speaks of damages to recoup development costs of the invention. The record here is devoid of evidence respecting such costs.