Notes on 35 U.S.C. § 271 : US Code - Notes

Search Notes on 35 U.S.C. § 271 : US Code - Notes

(July 19, 1952, ch. 950, 66 Stat. 811; Pub. L. 98-417, title II,
Sec. 202, Sept. 24, 1984, 98 Stat. 1603; Pub. L. 98-622, title I,
Sec. 101(a), Nov. 8, 1984, 98 Stat. 3383; Pub. L. 100-418, title
IX, Sec. 9003, Aug. 23, 1988, 102 Stat. 1563; Pub. L. 100-670,
title II, Sec. 201(i), Nov. 16, 1988, 102 Stat. 3988; Pub. L. 100-
703, title II, Sec. 201, Nov. 19, 1988, 102 Stat. 4676; Pub. L.
102-560, Sec. 2(a)(1), Oct. 28, 1992, 106 Stat. 4230; Pub. L. 103-
465, title V, Sec. 533(a), Dec. 8, 1994, 108 Stat. 4988; Pub. L.
108-173, title XI, Sec. 1101(d), Dec. 8, 2003, 117 Stat. 2457.)
HISTORICAL AND REVISION NOTES
The first paragraph of this section is declaratory only, defining
infringement.
Paragraphs (b) and (c) define and limit contributory infringement
of a patent and paragraph (d) is ancillary to these paragraphs, see
preliminary general description of bill. One who actively induces
infringement as by aiding and abetting the same is liable as an
infringer, and so is one who sells a component part of a patented
invention or material or apparatus for use therein knowing the same
to be especially made or especially adapted for use in the
infringement of the patent except in the case of a staple article
or commodity of commerce having other uses. A patentee is not
deemed to have misused his patent solely by reason of doing
anything authorized by the section.
REFERENCES IN TEXT
The Federal Food, Drug, and Cosmetic Act, referred to in subsec.
(e)(1), (2), is act June 25, 1938, ch. 675, 52 Stat. 1040, as
amended, which is classified generally to chapter 9 (Sec. 301 et
seq.) of Title 21, Food and Drugs. Sections 505 and 512 of the Act
are classified to sections 355 and 360b, respectively, of Title 21.
For complete classification of this Act to the Code, see section
301 of Title 21 and Tables.
Act of March 4, 1913, referred to in subsec. (e)(1), (2), is act
Mar. 4, 1913, ch. 145, 37 Stat. 828, as amended. The provisions of
such act relating to viruses, etc., applicable to domestic animals,
popularly known as the Virus-Serum-Toxin Act, are contained in the
eighth paragraph under the heading "Bureau of Animal Industry" of
act Mar. 4, 1913, at 37 Stat. 832, and are classified generally to
chapter 5 (Sec. 151 et seq.) of Title 21. For complete
classification of this Act to the Code, see Short Title note set
out under section 151 of Title 21 and Tables.
AMENDMENTS
2003 - Subsec. (e)(5). Pub. L. 108-173 added par. (5).
1994 - Subsec. (a). Pub. L. 103-465, Sec. 533(a)(1), inserted ",
offers to sell," after "uses" and "or imports into the United
States any patented invention" after "the United States".
Subsec. (c). Pub. L. 103-465, Sec. 533(a)(2), substituted "offers
to sell or sells within the United States or imports into the
United States" for "sells".
Subsec. (e)(1). Pub. L. 103-465, Sec. 533(a)(3)(A), substituted
"offer to sell, or sell within the United States or import into the
United States" for "or sell".
Subsec. (e)(3). Pub. L. 103-465, Sec. 533(a)(3)(B), substituted
"offering to sell, or selling within the United States or importing
into the United States" for "or selling".
Subsec. (e)(4)(B), (C). Pub. L. 103-465, Sec. 533(a)(3)(C), (D),
substituted "offer to sell, or sale within the United States or
importation into the United States" for "or sale".
Subsec. (g). Pub. L. 103-465, Sec. 533(a)(4), substituted "offers
to sell, sells," for "sells", "importation, offer to sell, sale,"
for "importation, sale,", and "other use, offer to sell, or" for
"other use or".
Subsec. (i). Pub. L. 103-465, Sec. 533(a)(5), added subsec. (i).
1992 - Subsec. (h). Pub. L. 102-560 added subsec. (h).
1988 - Subsec. (d). Pub. L. 100-703 added cls. (4) and (5).
Subsec. (e)(1). Pub. L. 100-670, Sec. 201(i)(1), inserted "which
is primarily manufactured using recombinant DNA, recombinant RNA,
hybridoma technology, or other processes involving site specific
genetic manipulation techniques" after "March 4, 1913)" and "or
veterinary biological products" after "sale of drugs".
Subsec. (e)(2). Pub. L. 100-670, Sec. 201(i)(2), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: "It shall
be an act of infringement to submit 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, 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 claimed in a patent
or the use of which is claimed in a patent before the expiration of
such patent."
Subsec. (e)(4). Pub. L. 100-670, Sec. 201(i)(3), inserted "or
veterinary biological product" after "drug" in subpars. (A) to (C).
Subsec. (g). Pub. L. 100-418 added subsec. (g).
1984 - Subsec. (e). Pub. L. 98-417 added subsec. (e).
Subsec. (f). Pub. L. 98-622 added subsec. (f).
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-465 effective on date that is one year
after date on which the WTO Agreement enters into force with
respect to the United States [Jan. 1, 1995], with provisions
relating to earliest filed patent application, see section 534(a),
(b)(3) of Pub. L. 103-465, set out as a note under section 154 of
this title.
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Pub. L. 102-560 effective with respect to violations
that occur on or after Oct. 28, 1992, see section 4 of Pub. L. 102-
560, set out as a note under section 2541 of Title 7, Agriculture.
EFFECTIVE DATE OF 1988 AMENDMENTS
Section 202 of title II of Pub. L. 100-703 provided that: "The
amendment made by this title [amending this section] shall apply
only to cases filed on or after the date of the enactment of this
Act [Nov. 19, 1988]."
Section 9006 of Pub. L. 100-418 provided that:
"(a) In General. - The amendments made by this subtitle [subtitle
A (Secs. 9001-9007) of title IX of Pub. L. 100-418, enacting
section 295 of this title and amending this section and sections
154 and 287 of this title] take effect 6 months after the date of
enactment of this Act [Aug. 23, 1988] and, subject to subsections
(b) and (c), shall apply only with respect to products made or
imported after the effective date of the amendments made by this
subtitle.
"(b) Exceptions. - The amendments made by this subtitle shall not
abridge or affect the right of any person or any successor in
business of such person to continue to use, sell, or import any
specific product already in substantial and continuous sale or use
by such person in the United States on January 1, 1988, or for
which substantial preparation by such person for such sale or use
was made before such date, to the extent equitable for the
protection of commercial investments made or business commenced in
the United States before such date. This subsection shall not apply
to any person or any successor in business of such person using,
selling, or importing a product produced by a patented process that
is the subject of a process patent enforcement action commenced
before January 1, 1987, before the International Trade Commission,
that is pending or in which an order has been entered.
"(c) Retention of Other Remedies. - The amendments made by this
subtitle shall not deprive a patent owner of any remedies available
under subsections (a) through (f) of section 271 of title 35,
United States Code, under section 337 of the Tariff Act of 1930 [19
U.S.C. 1337], or under any other provision of law."
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-622 applicable only to the supplying, or
causing to be supplied, of any component or components of a
patented invention after Nov. 8, 1984, see section 106(c) of Pub.
L. 98-622, set out as a note under section 103 of this title.
REPORTS TO CONGRESS; EFFECT ON DOMESTIC INDUSTRIES OF PROCESS
PATENT AMENDMENTS ACT OF 1988
Pub. L. 100-418, title IX, Sec. 9007, Aug. 23, 1988, 102 Stat.
1567, provided that the Secretary of Commerce was to make annual
reports to Congress covering each of the successive five 1-year
periods beginning 6 months after Aug. 23, 1988, on the effect of
the amendments made by subtitle A (Secs. 9001-9007) of title IX of
Pub. L. 100-418, enacting section 295 of this title and amending
sections 154, 271, and 287 of this title, on those domestic
industries that submit complaints to the Department of Commerce
alleging that their legitimate sources of supply have been
adversely affected by the amendments.