35 U.S.C. § 271 : US Code - Section 271: Infringement of patent

Search 35 U.S.C. § 271 : US Code - Section 271: Infringement of patent

      (a) Except as otherwise provided in this title, whoever without
    authority makes, uses, offers to sell, or sells any patented
    invention, within the United States or imports into the United
    States any patented invention during the term of the patent
    therefor, infringes the patent.
      (b) Whoever actively induces infringement of a patent shall be
    liable as an infringer.
      (c) Whoever offers to sell or sells within the United States or
    imports into the United States a component of a patented machine,
    manufacture, combination or composition, or a material or apparatus
    for use in practicing a patented process, constituting a material
    part of the invention, knowing the same to be especially made or
    especially adapted for use in an infringement of such patent, and
    not a staple article or commodity of commerce suitable for
    substantial noninfringing use, shall be liable as a contributory
    infringer.
      (d) No patent owner otherwise entitled to relief for infringement
    or contributory infringement of a patent shall be denied relief or
    deemed guilty of misuse or illegal extension of the patent right by
    reason of his having done one or more of the following: (1) derived
    revenue from acts which if performed by another without his consent
    would constitute contributory infringement of the patent; (2)
    licensed or authorized another to perform acts which if performed
    without his consent would constitute contributory infringement of
    the patent; (3) sought to enforce his patent rights against
    infringement or contributory infringement; (4) refused to license
    or use any rights to the patent; or (5) conditioned the license of
    any rights to the patent or the sale of the patented product on the
    acquisition of a license to rights in another patent or purchase of
    a separate product, unless, in view of the circumstances, the
    patent owner has market power in the relevant market for the patent
    or patented product on which the license or sale is conditioned.
      (e)(1) It shall not be an act of infringement to make, use, offer
    to sell, or sell within the United States or import into the United
    States a patented invention (other than a new animal drug or
    veterinary biological product (as those terms are used in the
    Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)
    which is primarily manufactured using recombinant DNA, recombinant
    RNA, hybridoma technology, or other processes involving site
    specific genetic manipulation techniques) solely for uses
    reasonably related to the development and submission of information
    under a Federal law which regulates the manufacture, use, or sale
    of drugs or veterinary biological products.
      (2) It shall be an act of infringement to submit - 
        (A) an application under section 505(j) of the Federal Food,
      Drug, and Cosmetic Act or described in section 505(b)(2) of such
      Act for a drug claimed in a patent or the use of which is claimed
      in a patent,
        (B) an application under section 512 of such Act or under the
      Act of March 4, 1913 (21 U.S.C. 151-158) for a drug or veterinary
      biological product which is not primarily manufactured using
      recombinant DNA, recombinant RNA, hybridoma technology, or other
      processes involving site specific genetic manipulation techniques
      and which is claimed in a patent or the use of which is claimed
      in a patent, or
        (C)(i) with respect to a patent that is identified in the list
      of patents described in section 351(l)(3) of the Public Health
      Service Act (including as provided under section 351(l)(7) of
      such Act), an application seeking approval of a biological
      product, or
        (ii) if the applicant for the application fails to provide the
      application and information required under section 351(l)(2)(A)
      of such Act, an application seeking approval of a biological
      product for a patent that could be identified pursuant to section
      351(l)(3)(A)(i) of such Act,

    if the purpose of such submission is to obtain approval under such
    Act to engage in the commercial manufacture, use, or sale of a
    drug, veterinary biological product, or biological product claimed
    in a patent or the use of which is claimed in a patent before the
    expiration of such patent.
      (3) In any action for patent infringement brought under this
    section, no injunctive or other relief may be granted which would
    prohibit the making, using, offering to sell, or selling within the
    United States or importing into the United States of a patented
    invention under paragraph (1).
      (4) For an act of infringement described in paragraph (2) - 
        (A) the court shall order the effective date of any approval of
      the drug or veterinary biological product involved in the
      infringement to be a date which is not earlier than the date of
      the expiration of the patent which has been infringed,
        (B) injunctive relief may be granted against an infringer to
      prevent the commercial manufacture, use, offer to sell, or sale
      within the United States or importation into the United States of
      an approved drug, veterinary biological product, or biological
      product,
        (C) damages or other monetary relief may be awarded against an
      infringer only if there has been commercial manufacture, use,
      offer to sell, or sale within the United States or importation
      into the United States of an approved drug, veterinary biological
      product, or biological product, and
        (D) the court shall order a permanent injunction prohibiting
      any infringement of the patent by the biological product involved
      in the infringement until a date which is not earlier than the
      date of the expiration of the patent that has been infringed
      under paragraph (2)(C), provided the patent is the subject of a
      final court decision, as defined in section 351(k)(6) of the
      Public Health Service Act, in an action for infringement of the
      patent under section 351(l)(6) of such Act, and the biological
      product has not yet been approved because of section 351(k)(7) of
      such Act.

    The remedies prescribed by subparagraphs (A), (B), (C), and (D) are
    the only remedies which may be granted by a court for an act of
    infringement described in paragraph (2), except that a court may
    award attorney fees under section 285.
      (5) Where a person has filed an application described in
    paragraph (2) that includes a certification under subsection
    (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section 505 of the Federal
    Food, Drug, and Cosmetic Act (21 U.S.C. 355), and neither the owner
    of the patent that is the subject of the certification nor the
    holder of the approved application under subsection (b) of such
    section for the drug that is claimed by the patent or a use of
    which is claimed by the patent brought an action for infringement
    of such patent before the expiration of 45 days after the date on
    which the notice given under subsection (b)(3) or (j)(2)(B) of such
    section was received, the courts of the United States shall, to the
    extent consistent with the Constitution, have subject matter
    jurisdiction in any action brought by such person under section
    2201 of title 28 for a declaratory judgment that such patent is
    invalid or not infringed.
      (6)(A) Subparagraph (B) applies, in lieu of paragraph (4), in the
    case of a patent - 
        (i) that is identified, as applicable, in the list of patents
      described in section 351(l)(4) of the Public Health Service Act
      or the lists of patents described in section 351(l)(5)(B) of such
      Act with respect to a biological product; and
        (ii) for which an action for infringement of the patent with
      respect to the biological product - 
          (I) was brought after the expiration of the 30-day period
        described in subparagraph (A) or (B), as applicable, of section
        351(l)(6) of such Act; or
          (II) was brought before the expiration of the 30-day period
        described in subclause (I), but which was dismissed without
        prejudice or was not prosecuted to judgment in good faith.

      (B) In an action for infringement of a patent described in
    subparagraph (A), the sole and exclusive remedy that may be granted
    by a court, upon a finding that the making, using, offering to
    sell, selling, or importation into the United States of the
    biological product that is the subject of the action infringed the
    patent, shall be a reasonable royalty.
      (C) The owner of a patent that should have been included in the
    list described in section 351(l)(3)(A) of the Public Health Service
    Act, including as provided under section 351(l)(7) of such Act for
    a biological product, but was not timely included in such list, may
    not bring an action under this section for infringement of the
    patent with respect to the biological product.
      (f)(1) Whoever without authority supplies or causes to be
    supplied in or from the United States all or a substantial portion
    of the components of a patented invention, where such components
    are uncombined in whole or in part, in such manner as to actively
    induce the combination of such components outside of the United
    States in a manner that would infringe the patent if such
    combination occurred within the United States, shall be liable as
    an infringer.
      (2) Whoever without authority supplies or causes to be supplied
    in or from the United States any component of a patented invention
    that is especially made or especially adapted for use in the
    invention and not a staple article or commodity of commerce
    suitable for substantial noninfringing use, where such component is
    uncombined in whole or in part, knowing that such component is so
    made or adapted and intending that such component will be combined
    outside of the United States in a manner that would infringe the
    patent if such combination occurred within the United States, shall
    be liable as an infringer.
      (g) Whoever without authority imports into the United States or
    offers to sell, sells, or uses within the United States a product
    which is made by a process patented in the United States shall be
    liable as an infringer, if the importation, offer to sell, sale, or
    use of the product occurs during the term of such process patent.
    In an action for infringement of a process patent, no remedy may be
    granted for infringement on account of the noncommercial use or
    retail sale of a product unless there is no adequate remedy under
    this title for infringement on account of the importation or other
    use, offer to sell, or sale of that product. A product which is
    made by a patented process will, for purposes of this title, not be
    considered to be so made after - 
        (1) it is materially changed by subsequent processes; or
        (2) it becomes a trivial and nonessential component of another
      product.

      (h) As used in this section, the term "whoever" includes any
    State, any instrumentality of a State, and any officer or employee
    of a State or instrumentality of a State acting in his official
    capacity. Any State, and any such instrumentality, officer, or
    employee, shall be subject to the provisions of this title in the
    same manner and to the same extent as any nongovernmental entity.
      (i) As used in this section, an "offer for sale" or an "offer to
    sell" by a person other than the patentee, or any designee of the
    patentee, is that in which the sale will occur before the
    expiration of the term of the patent.